2. Constitutional design

Constitutions, usually codified in constitutional documents, are primary institutions for organising political systems and have been core matter for comparative politics scholars since at least the time of Aristotle (Ginsburg, Reference Ginsburg, Gandhi and Ruiz-Rufino2015). By contrast with national constitutions, those of international organisations, like the Charter of the United Nations and the Constitution of the World Health Organization, are much more recent and have emerged mostly in the 20th century, with the rise of multilateralism after the Second World War (Harrington, Reference Harrington2018). These documents are ‘strange creatures’, which are ‘often said to occupy a special place in international law’ (Klabbers, Reference Klabbers2015: 70). On the one hand, they are ordinary international treaties made by nation-states which do not differ in principle from other treaties; on the other hand, they constitute the principles, powers and structures of international organisations and, as such, enjoy special treatment as being sui generis (Klabbers, Reference Klabbers2015). Like their national counterparts, however, international constitutions establish institutions and mechanisms of governing, and distribute them to legislative, executive, sometimes even judicial authorities (Ginsburg, Reference Ginsburg, Galligan and Versteeg2013; Trachtman, Reference Trachtman2013).

Constitutional economics studies constitutions as devices that facilitate human cooperative interaction to achieve gains from political and other forms of transactions (Trachtman, Reference Trachtman, Dunoff and Trachtman2009). National constitutions often spring from a convergent agreement by factions embroiled in a mixed game of conflict and cooperation, although each party may have an incentive to cooperate with each other to converge on an agreement, collectively they differ over how to distribute costs and benefits (Ginsburg, Reference Ginsburg and Parisi2017). This insight of constitutional economics applies to global governance as well. States may have to undergo costly adjustments to meet unpredictable contingencies, or try to extract rents from other states by opportunistic practices (Aceves, Reference Aceves1996). Analogous to private persons assuming contractual obligations, states are involved in negotiating and implementing international treaties, including international organisational constitutions, which may take years of negotiations to conclude. Real-world negotiators do not enjoy the luxury of unlimited time and resources (Ginsburg, Reference Ginsburg and Parisi2017). A standard solution to this scarcity and to other transaction costs of bargaining is to draft vaguely worded agreements that allow flexible adaptation over time as new information comes to light (Ginsburg, Reference Ginsburg, Galligan and Versteeg2013). This state of affairs gives rise to the problem of incomplete contracting (Cooley and Spruyt, Reference Cooley and Spruyt2009): even if an international agreement can be concluded, member-states may have to face further transaction costs such as non-enforcement of the agreement (Dijkstra, Reference Dijkstra2013). States may resort to designing international organisations to solve coordination problems (Trachtman, Reference Trachtman and Parisi2017). These can reduce transaction costs by compiling information, utilising specialist expertise, setting binding norms, pooling resources, facilitating interstate collaboration, sometimes even monitoring state acts and settling interstate disputes (Tamanaha, Reference Tamanaha2017). An international organisation's existence is justified insofar as the value of cooperation is greater than the costs of its being thus organised (Trachtman, Reference Trachtman2014). States resort to international organisations to further their own interests, and design the constitutions of these organisations accordingly (Koremenos et al., Reference Koremenos, Lipson and Snidal2001).

The constitutions of international organisations can be impaired by a discordancy between the ‘expressive’ and the ‘instrumental’, between ends and means; this is most visible when momentous end-goals expressed as constituent principles of a community are disproportioned with weak enforcement mechanisms incompetent to actualise them (Brennan and Hamlin, Reference Brennan and Hamlin2000: 146). Constitutional economists have noted a phenomenon of ‘expressive constitutionalism’, analogous to the phenomenon of expressive voting in which voters, fully understanding that their votes cannot change electoral outcomes, may be motivated by concerns other than the outcome, such as expressing support for a political cause for its own sake (Hamlin and Jennings, Reference Hamlin and Jennings2011). Constitution-making is a rare event occurring ‘under very special circumstances’ (Voigt, Reference Voigt2011: 207). At ‘constitutional moments’ (Ackerman, Reference Ackerman1993), expressive concerns for foundational values and principles like democracy and justice may be raised on par with more instrumental and consequentialist concerns (Brennan and Hamlin, Reference Brennan and Hamlin2002). The concept of constitutional moments has been modified to cover a significant moment in time that merits the memorialisation of constitutional principles respecting a certain issue (Giannini, Reference Giannini, Voeneky and Neuman2018: 213). A constitutional moment may arise in the international arena as a consequence of an exogenous shock resulting in a shift in concerns or perceptions that disturbs the status quo (Trachtman, Reference Trachtman, Dunoff and Trachtman2009). States can come together to express their sentiments in a high-political document under certain circumstances, as at the landmark adoption of the Universal Declaration of Human Rights in 1948, when ‘so many delegations from so many different nations and cultural traditions’ could converge on ‘a universal moral code’ with the horrors and destructions of the Second World War as the catalyst (Morsink, Reference Morsink1999: 36). There is a real risk that constitutions come to have ‘more to do with their ability to raise a cheer than their ability to serve [consequential] interests’ (Brennan and Hamlin, Reference Brennan, Hamlin, Weingast and Wittman2006: 341).

WHO's constitutional inaugural was on 22 July 1946, when representatives of 61 states, of which 51 were members of the newly established United Nations, signed the Constitution of the World Health Organization in New York at the concluding session of the International Health Conference (Calderone, Reference Calderone1947). Participants of this solidary Conference, assembled within a year of the end of the Second World War, apparently got along so well with each other that virtually no disagreement on the essentials occurred (Parran and Boudreau, Reference Parran and Boudreau1946). That the Organization was established with international consent only in 1946 but not earlier was telling.. Serious attempts to establish an international health organisation had been made since the late 19th and early 20th century with the creation of the International Sanitary Bureau (later renamed the Pan-American Sanitary Bureau) in Washington, DC in 1902; the Office international d'Hygiène publique (OIHP) in Paris in 1907; and the League of Nations Health Organization (LNHO) in Geneva in 1920, all of which operated independent of each other (Birn et al., Reference Birn, Pillay and Holtz2018). The WHO's moment came precisely when there was a significant shift and realignment of state preferences and perceptions of pressures and interests concerning human rights and public health (Krajewska, Reference Krajewska2015: 783; Trachtman, Reference Trachtman2008). With so many parts of the world in ruins, socio-economic infrastructure destroyed, tens of millions of people killed in the War, and many more lacking basic housing, food and medicine, the delegates of the International Health Conference felt a strong urge to embody the global sentiment that public health should be given extraordinarily high priority in the nascent UN system (Lee, Reference Lee2009). The delegates agreed that the LNHO and OIHP should be dissolved, their functions and personnel transferred to the new WHO, and the Pan American Sanitary Bureau incorporated into the WHO as one of its regional organisations (Youde, Reference Youde2018). In less than a year, on 7 April 1948, the Constitution had earned the 26 ratifications needed for the document to enter into force.

The WHO Constitution was in some sense ‘more ambitious than the UN Charter in terms of its goals’ (Alvarez, Reference Alvarez2017: 194). The Constitution's ‘expressive’ Preamble confidently redefines the concept of health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’, which is ‘one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’. It proceeds to declare, ‘The health of all peoples’ is ‘fundamental to the attainment of peace and security’, and is ‘dependent upon the fullest co-operation of individuals’; and so to condemn ‘[u]nequal development in different countries in the promotion of health and control of disease, especially communicable disease’ to be ‘a common danger’. It moreover avers, ‘Healthy development of the child’ is of ‘basic importance’; and the dissemination of ‘medical, psychological and related knowledge’ is ‘essential to the fullest attainment of health’. It goes on to encourage ‘the public’ to offer ‘[i]nformed opinion and active co-operation’ to ‘the improvement of the health of the people’; and obligates governments to provide ‘adequate health and social measures’ for the sake of ‘the health of their peoples’.

As noted above, constitutional designers and their constituents may perceive the Constitution they are framing not principally as a manual for governing operations, but as a defining statement of the fundamental political beliefs of the time (Hamlin, Reference Hamlin and Marciano2011). The rump of the WHO's Constitution, that is, the ‘instrumental’ provisions, seen through the lens of constitutional economics, shows that the states parties were not prepared to delegate to the Organization formal enforcement mechanisms adequate for realising the lofty ideals codified in the Preamble. Indeed, as with the whole UN system, the states acting as principals resisted empowering any agent international organisation so that it might compromise the sovereignty of core states or displace the centrality of the state system in international affairs (Barkin, Reference Barkin2013). In short, the WHO was set up to operate within the parameters of ‘Westphalianism’ (Aginam, Reference Aginam, Freeman, Hawkes and Benneth2014: 559), under which sovereign nation-states remain ‘the most important participants’ in decision-making internationally (Chen, Reference Chen2015: 25). The WHO does have a constitutional mandate to manage international cooperation: ‘to act as the directing and co-ordinating authority on international health work’ [article 1(a)]; as well as ‘to establish and maintain effective collaboration with the United Nations’ [article 1(b)].

The most ground-breaking constitutional function of the WHO is a wide-ranging legislative initiative competence ‘to propose conventions, agreements and regulations, and make recommendations with respect to international health matters’ [article 1(k)]. The actual power of institutions within the WHO to perform these functions, however, is sharply curtailed by the applicable provisions of the same Constitution, which establish a WHA inter alia to decide on the policies of the Organization [article 18(a)], as the collective principal of the Organization, in which each member-state is to have one vote (article 59), to make sure that as a formal matter, no state, regardless of its military or economic might, can dominate the Organization's agenda at the expense of the small and the developing countries (van der Rijt and Pang, Reference van der Rijt and Pang2015). The Assembly has no authority to adopt conventions or agreements without the consent of a two-thirds majority (article 19). Distinct from a simple majority, this super-majoritarian rule imposes considerable transaction costs on the WHO's legislative process. Any member-state that does not vote in favour of a WHO convention or agreement will not be bound by it under established principles of international law. The Constitution does provide for ‘regulations’ to be adopted by simple majority vote in the Assembly (article 21), and that such regulations bind all member-states by default unless they opt-out or make reservations within a period of expiry (article 2). Regulations are confined to the tightly defined domains of infectious diseases [article 21(a)]; medical nomenclature [article 21(b)]; diagnostic procedural standards [article 21(c)] and those covering ‘the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce’ [article 21(d)] and their ‘advertising and labelling’ [article 21(e)].

The framers of the Constitution entrenched a policy-maker/technocrat dichotomy in the Organization, by way of which the WHA serves as a collective political principal whereas the Executive Board and Secretariat serve as the administrative agents, staffed by apolitical technical experts holding no power or right in making political decisions (Kickbusch and Reddy, Reference Kickbusch and Reddy2015). The Constitution designates the Executive Board as the ‘executive organ of the Health Assembly’ [article 28(b)], in charge of advising it [article 28(d)–(e)] and planning its session agendas. The WHA is enabled to delegate others of its own powers to the Board (article 29). It originally comprised 18 members, each of them ‘technically qualified in the field of health’, to be elected by the Health Assembly according to the principle of ‘equitable geographical distribution’ (article 24). Another technical corps, the Secretariat, is to consist of the Director-General and other administrative and technical staff (article 30). The Director-General, appointed by the WHA upon the Executive Board's nomination, was constitutionally defined to be merely ‘the chief technical and administrative officer of the Organization’ (article 31); not to exercise political leadership like the prime ministers of nation-states, but rather to serve as the ‘ex officio Secretary of the Health Assembly, of the Board, of all commissions and committees of the Organization and of conferences convened by it’ (article 32). The Secretariat is enjoined to be impartial (article 37). The Constitution makes of each regional organisation ‘an integral part of the Organization’ (article 45), but paradoxically allows each of these to adopt its own rules of procedure (article 49), to formulate regional health policies and to supervise the regional office [article 50(b)], and effectively to veto the Executive Board's choice of Regional Director and staff (article 53).

The constitutions of international organisations, like other international agreements, may centralise mechanisms to enforce state obligations or stabilise the expectations of states about each other's behaviour, or both (Keohane, Reference Keohane1984). International organisations possess no inherent and general military power, the traditional sine qua non of international relations (Barkin, Reference Barkin2013). Outside of this, the most powerful formal mechanism that has ever existed is a judicial proceeding by which individuals can obtain substantial material redress against non-compliant states. Examples include the Court of Justice of the European Union in Luxembourg and the European Court of Human Rights in Strasbourg. A least powerful variant would be one that rewards cooperation or punishment on the tacit or explicit majoritarian consent of participating member-states. A conspicuous example is the three-tiered Dispute Settlement Body of the World Trade Organization (WTO), which has power to authorise complainant states to retaliate proportionately in the form of trade preferences contra a non-compliant state (Stephan, Reference Stephan, Kontorovich and Parisi2016). States that reckon the costs of enforcement by an international organisation greater than its benefits will prefer informal enforcement or avoid being bound in the first place. The WHO Constitution provides for no formal enforcement mechanism at all. Failure of a member-state ‘to meet its financial obligations’ to the WHO may, or may not, result in the mere suspension of that state's voting privileges and services by a high transaction costs body none other than the WHA (article 7) – a threat that is hardly credible. Neither the Constitution nor IHR (2005) confer on the Organization any enforcement powers to sanction state violations of international health law (Fidler, Reference Fidler1998). No world health tribunal exercising judicial power was ever established by the Constitution. Any question or dispute over the interpretation or application of the Constitution which is not settled by negotiation or by the WHA is to be referred to the International Court of Justice, unless the affected parties agree another mode of settlement (article 75). Consequently, there is no WHO legal system corresponding to the WTO legal system (Palmeter and Mavrodis, Reference Palmeter and Mavroidis1998), nor any WTO-style ‘judicialized, rule-oriented approach to dispute resolution’ (Matsushita et al., Reference Matsushita, Schoenbaum, Mavroidis and Hahn2015: 86), nor scholarship on ‘WHO law’ comparable to the sophisticated literature on WTO law.

It is safe to predict that the WHO as presently constituted will never manage to attain the manifold expressive ideals of its Preamble. First, the super-majoritarian rule governing WHA treaty making will inevitably trigger skyrocketing political transaction costs that will practically preclude this power from ever being invoked in the first place. Second, defining the domain of International Health Regulations narrowly circumscribes the Organization's ability to react to the mutating circumstances of global public health. Third, states parties' refusal to delegate formal enforcement powers to the Executive Board and the Secretariat means that states can violate WHO regulations with impunity; at most they would only be constrained by informal compliance mechanisms generally operative in international law, such as retaliation, reputation and reciprocity (Guzman, Reference Guzman2006). Fourth, to designate the Director-General a technical and administrative officer is to prevent the incumbent to function authoritatively as a coordinator in international health efforts. Fifth, the decentralisation of WHO regional organisations imposes prohibitive agency costs on the Executive Board and Secretariat in administering the Organization locally. As the next section demonstrates, these conclusions are broadly consistent with the WHO's developmental trajectory over its life, to such an extent that the Organization has been criticised as not ‘fit for purpose’ any more (Kickbusch and Reddy, Reference Kickbusch and Reddy2015: 2839).

3. The Constitution-in-action

Constitutionally mandated transaction costs critically constrain the WHO's ability to legislate responsively. States very often disagree on everything from disease origins and travel advisories, to trade bans and border closings, to vaccine provision and the proper treatment of foreign nationals (Hoffman, Reference Hoffman, Rushton and Youde2015). One of the rationales for instituting an international organisation such as the Organization is to reduce transaction costs like bargaining costs, and information and coordination costs, to raise the efficiency of inter-state cooperation (Dijkstra, Reference Dijkstra2013). The world may look to the WHO as its coordinating health agency, but its Constitution imposes a two-thirds majority approval on many of its relations with other international actors (articles 69, 70 and 72). The Organization is paralysed by the unanimity required of any valid treaty of international applicability (Posner and Sykes, Reference Posner and Sykes2013). And as a member-driven multilateral organisation, the Organization is sensitive to the transition of global governance towards polycentrism (van de Pas and van Schaik, Reference van de Pas and van Schaik2014). The rise of autonomous regions within nation-states and the proliferation of non-state actors have thwarted WHO's attempts to be an active, monopolising, international health legislator (Ruger, Reference Ruger2018). Non-state actors such as wealthy private foundations like the Bill & Melinda Gates Foundation (BMGF) and public–private partnerships such as Gavi, the Vaccine Alliance have gained immense influence over global public health in recent decades (Yeoh, Reference Yeoh, Detels, Gulliford, Karim and Tan2015: 799). The BMGF, in particular, has funded virtually every major global health actor in ways that more or less bypassed the WHO and other public decisional processes (Birn et al., Reference Birn, Pillay and Holtz2018: 183). Internal gridlock trammels the possibilities of ambitious external action. A perceived disconnect subsists between the priorities of the health ministries that govern the WHO through its Executive Board and the WHA, on the one hand, and on the other, those of the Ministries of Foreign Affairs and Departments of Development Assistance that give out the financing for global health through overseas development assistance (Lidén, Reference Lidén2014). The ambiguities of Chapter XII of the Constitution about the WHO's budget and expenses, as well as the difficulty in enforcing members' financial obligations according to that document are in all likelihood associated with the persistent underfunding and financial stress incurred by the Organization since the 1980s (see Reddy et al., Reference Reddy, Mazhar and Lencucha2018).

Against this institutional backdrop, it should surprise no one that the WHO rarely asserts its constitutional legislative authority by negotiating binding international health treaties (Gostin, Reference Gostin2014); so much so that the Executive Board and WHA have become ‘dysfunctional’ because of the agenda overload and the difficulty of achieving consensus (Kickbusch and Reddy, Reference Kickbusch and Reddy2015: 2839). They have not even been a leader, let alone the leader, in the burgeoning health and human rights movement, leaving that to civil society and the UN Special Rapporteur on the Right to Health (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015). The WHA has adopted just three treaties in its history, two of which predate the WHO: the Nomenclature Regulations and the International Health Regulations (Gostin, Reference Gostin2014). In a similar vein, the WHO has rarely exercised its law-making powers to address such important problems as alcohol overconsumption and antimicrobial resistance (Clinton and Sridhar, Reference Clinton and Sridhar2017). It was woefully unprepared for events like the dramatic epidemic of tuberculosis in the former Soviet states that was rooted in larger political and economic developments (Lidén, Reference Lidén2014).

The legislative power of the WHA had never been meaningfully activated until the FCTC of 2003 (Cockerham, Reference Cockerham2018). The FCTC is well known for how little time it took for member-states to converge on an ambitious text that was supposed to be implemented in dozens of countries around the world (Wipfli, Reference Wipfli2015). As of 2015, as many as 70% of member-states have implemented its binding provisions (Wipfli, Reference Wipfli2015: 181). Nonetheless, the success of the FCTC must not be overstated: it contains considerable ambiguities; provides no resources to developing countries to enforce its policies; and is inhibited by a militant tobacco industry, WTO cases against tobacco control measures in Australia and Uruguay (Gostin and Sridhar, Reference Gostin and Sridhar2014), and a United States-led campaign against the WHO for overstepping its mandate (Sekalala, Reference Sekalala2017). The FCTC established no World Tobacco Organization, nor an international tobacco tribunal to arbitrate disputes arising from itself (Alvarez, Reference Alvarez2017).

The FCTC is the outlier in the WHO's legislative history. There is, for instance, no comparable Framework Convention on Global Health or Framework Convention on Alcohol Regulation adopted in the same time frame (Wibulpolprasert and Chowdhury, Reference Wibulpolprasert and Chowdhury2016). Constitutionally originated transaction costs dampen the WHO's treaty-making initiative to such an extent that the WHO has been ‘reticent to venture into norm-development’, and ‘rarely invokes the right to health’ spoken of so highly in its Constitution (Clinton and Sridhar, Reference Clinton and Sridhar2017: 181). Even when it acts normatively, it has chosen soft law, in the form of guidelines, codes or recommendations, such as the International Code of Marketing of Breast-Milk Substitutes of 1981, and the Global Strategy for the Prevention and Control of HIV/AIDS of 1987, the Global Strategy on Diet and Physical Activity of 2004, and the Global Code of Practice on the International Recruitment of Health Personnel of 2010, rather than hard, binding international treaty law (Toebes, Reference Toebes, Burci and Toebes2018). But even in relation to soft law, the WHO has rarely invoked its power under Article 23 of the Constitution to make recommendations, nor enforced its Article 62 power to require reporting (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015). And WHO is not the only originator of soft health law; other intergovernmental organisations (IGOs) that issue similar norms include the World Bank, the Global Fund, bilateral development agencies, private foundations and international health partnership programmes (Wibulpolprasert and Chowdhury, Reference Wibulpolprasert and Chowdhury2016).

The restraints on the scope of International Health Regulations (articles 21 and 22) trammel the Organization's responsiveness to new transnational health situations. In 1951, the WHA invoked its regulatory authority to substitute the International Sanitary Regulations for the International Sanitary Convention, and cover six ‘quarantinable diseases’ including smallpox. By 1981, these had been reduced to three only, namely, yellow fever, plague and cholera (Dover, Reference Dover2014). Revision of the Regulations really gained momentum with the global outbreak of SARS in between 2002 and 2003, and the spread of both human (H3N2) and avian (H5N1) influenza barely a year later. If ever there was a situation that warranted immediate WHO action going beyond its treaty mandates and adopting recommendations for private companies and individuals, it was SARS (Casini, Reference Casini and Cassese2016), that ‘distilled all of the fears about the weakness of the existing [International Health Regulations] into one single outbreak’ (Youde, Reference Youde2018: 66). These Regulations – IHR (2005) – formally vest in the WHO power to issue recommendations and alerts; which is seen as ‘a very significant political step’ for the Organization (Mack, Reference Mack2006: 376). These powers imply no formal enforcement mechanism against non-compliance yet give teeth to the WHO as informal compliance levers, as witness how WHO-issued recommendations and travel advisories during the SARS epidemic devastated national economies and nudged ‘wayward’ states back into compliance with WHO demands (Mack, Reference Mack2006), lest ignoring them detrimentally impacts a state's reputation and international standing indirectly, as a consequence of disease outbreaks, polio, cholera and plague (Davies et al., Reference Davies, Kamradt-Scott and Rushton2015). The new disease surveillance and reporting requirements of IHR (2005) were accompanied by no financial assistance to set them and keep them up; the upshot being that many states still lacked capacities to implement a broad, internationally liaised public health system (Youde, Reference Youde2018). On six occasions since 2005, the WHO has declared a Public Health Emergency of International Concern (PHEIC), most recently on 30 January 2020, in response to the spread of COVID-19 from Wuhan, China. It received harsh criticism for its handling of the 2014–2016 Ebola epidemic in West Africa, which exposed the international community's unpreparedness for global health emergencies. Ebola took away more than 11,000 human lives, engendered an economic loss of more than $2.8 billion for West African countries, and most importantly for our purposes, revealed flaws in the IHR (2005), and in the WHO at a general level: the PHEIC declaration was not responsive enough, the domestic public health capacity was ‘grossly inadequate’, and the WHO ‘suffered from a lack of clear leadership’ (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015: 857).

States' refusal to delegate formal enforcement powers to the Executive Board and the Secretariat has enabled them to violate WHO rules with impunity. The powers of the WHO to exercise jurisdiction in pursuit of its constitutional objectives are derived from the delegation and consent of its 194 members. This explains why neither the IHR (2005) nor the FCTC came with credible enforcement mechanisms (van de Pas and van Schaik, Reference van de Pas and van Schaik2014). Global public health, the holy grail of all international health efforts, is a global public good (Cockerham and Cockerham, Reference Cockerham and Cockerham2010), that is, one person consuming global public health does not diminish how much of it is left for others, and others are not deprived of it by the people currently consuming it (Moon et al., Reference Moon, Røttingen and Frenk2017). Conversely, pandemics are a global public bad or evil: their harm is non-rival and, subject to costly quarantine measures, non-excludable (Trachtman, Reference Trachtman2013). Notice that suppression of public evils is itself a public good, and all public goods are prone to be underprovided due to the free-rider problem. The provision of global public health thus exhibits the characteristics of a multilateral prisoners' dilemma in which all states in principle agree that some international cooperation is needed for the eradication of a global public evil, say, COVID-19, yet quarrel over how to go about that cooperation, notwithstanding their universal common interest in preventing pandemics (Guzman, Reference Guzman2008). Because so many states are involved, each has an incentive to shirk responsibility and just free-ride on the effort of others. National governments that are already free-riding are even likely to reckon on the benefits of free-riding when it comes to weighing up the costs and benefits of secrecy vs full disclosure, as seen in China's original approach towards the 2003 SARS outbreak (Davies, Reference Davies2017), and the authorities' silencing of eight doctor-whistle-blowers during the initial phases of the COVID-19 outbreak 16 years later. Similarly, a small minority of states ignored WHO's bans on pork, importing live pigs, slaughtering livestock, international flights or quarantining persons from countries that reported cases of H1N1 influenza (Davies et al., Reference Davies, Kamradt-Scott and Rushton2015). One reason states prefer to postpone till the last minute reporting an outbreak is to avoid as long as possible the loss of tourism and trade that a timelier report would cause (Trachtman, Reference Trachtman and Parisi2017). The consequence is a general failure to coordinate prudently, plunging all into a pessimal equilibrium (Eggleston et al., Reference Eggleston, Zhang and Zeckhauser2010). Investment in global health by rational, self-interested utility-maximisers is bound to be small, given the lack of an effective framework of multilateral cooperation. Global public goods problems are best approached through a collective action lens, which shows classic diplomatic reciprocity to be less effective as an enforcement device (Guzman, Reference Guzman2008). It is, for instance, in all states' interest to be coordinated by a powerful global leader who can oversee health security, construct health systems and combat health inequalities. This will hardly materialise, however, if members are unwilling to fund it, vest adequate authority and discretion in it, and let it become an accountability holder (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015).

In a multilateral prisoner's dilemma, defection is the dominant yet most inefficient strategy. The role of international law and international organisations is to modify these coordination payoffs until cooperation between the ‘prisoners’ becomes their dominant strategy. Ceding to an international organisation an enforcement mandate addresses the very second-order collective action problem that undermines enforcement (Trachtman, Reference Trachtman and Parisi2017). Such a mandate spares the costs of inefficient strategic behaviour by supplying and certifying information, filling in incomplete contracts; it changes the structure of retaliations and of payoffs from defection. A dispute settlement process can ameliorate information problems. But the WHO has no mechanism to compel states to divulge outbreaks at the optimal stage for issuing a general alert (Posner and Sykes, Reference Posner and Sykes2013), and having no enforcement authority from its member-state principals, it has been ‘timid’ as to promulgating health standards and keeping quality control of crisis responses (Francesco et al., Reference Francesco, Waldman, Roberts, Ager, Asgary, Benner, Blanchet, Burnham, d'Harcourt, Leaning, Massaquoi, Mills, Moresky, Patel, Roberts, Toole, Woodruff and Zwi2016: 3). By February 2020, over 60 countries including the United States had defied, in whole or in part, recommendations from Director-General Tedros Adhanom Ghebreyesus, elected in 2017 with Chinese support, that travel bans on China are unnecessary for combating COVID-19, in allusion to the IHR's (2005) discouragement of interferences with international traffic and trade. There is nothing in the WHO that is remotely comparable to the curia of supranational organisations which can use coercion on otherwise sovereign member-states to overcome prisoner's dilemmas, such as with the European Union institutions like the Commission and Court of Justice (Laursen, Reference Laursen and Laursen1995; Scharpf, Reference Scharpf, Börzel and Cichowski2003). Without a ‘World Health Tribunal’ as a credible compliance mechanism, the WHO is frequently underestimated and ignored, if not dismissed by other international health actors. And new global health projects are emerging as alternatives to the WHO. But amending the WHO Constitution to entrench rigorous enforcement powers is highly unlikely; member-states harbour deep scepticism about assertive and coercive WHO management (Ruger, Reference Ruger2018).

The WHO in its early years was indeed dedicated to offering technical assistance to eradicate diseases in accord with the sanitary and quarantine rules agreed by member-states (Sekalala, Reference Sekalala2017). Gradually, with the support of newly independent states from the developing world, the WHO began to coordinate international health efforts through resolutions to eradicate yaws, smallpox and malaria and by launching mass vaccination campaigns. Despite being the only institution with authority to develop and implement international health standards, the Organization's reputation has diminished (Ruger, Reference Ruger2018), in part because of the tight control that individual member-states exert over the Director-General and the Secretariat in overall planning and budgetary matters (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015). The same states in the teeth of their reiterated expressions of commitment to reform have blocked changes to the Organization's regional structure (Kickbusch and Reddy, Reference Kickbusch and Reddy2015). Former Norwegian Prime Minister Gro Harlem Brundtland, who served as Director-General from 1998 to 2003, succeeded in restoring the WHO's primacy in setting world health priorities, especially in relation to tobacco control issues, but made little progress with the consistency of the WHO's work across nations, nor with overcoming active or passive resistance from directors of the regional organisations (Lidén, Reference Lidén2014). The Secretariat has been ‘cautious and reluctant’ to act independently on major global health policies, with the possible exception of the SARS epidemic (Cockerham, Reference Cockerham2018). The explicit constitutional designation of the Director-General as a quasi-clerical technocrat has weakened the incumbent's stature to coordinate international health efforts as an authoritative world leader. Under extraordinary circumstances, this arrangement may even function as a convenient cover for powerful state and non-state agents to influence or even manipulate the Director-General for ulterior political ends.

Devolution is not necessarily a bad thing, for it has the potential of enabling the WHO to address the needs of particular localities more responsively. But the overt decentralism of the WHO regional organisations imposes high agency costs on the Executive Board and Secretariat in coordinating the Organization's transnational activities that transcended nations and continents. The predecessors of the regional organisations were Regional Sanitary Offices whose structure survived the 1946 founding of the WHO intact. Each of the six offices has its own governing structures, i.e. regional committees. Coordination and consistency with WHO headquarters have been a matter of concern, as fundraising and budget allocation do not always serve international strategic objectives. Africa's needs, for instance, are very different from other regions', and yet the current rigid structure is apt to be a ‘key impediment’ to the WHO's effectiveness (van de Pas and van Schaik, Reference van de Pas and van Schaik2014: 197). WHO is too decentralised to credibly implement policy, with regional directors, for example, reporting to regional members instead of the Director-General (Gostin, Reference Gostin2014). This persistent incoordination of regional offices has time and again made it difficult for the WHO to reach unified goals (Youde, Reference Youde2018). Halfdan Mahler, Director-General from 1973 to 1988, regretted devolving further administrative powers to the regional offices, which had failed to implement his Primary Health Care policy, and eventually became a ‘major critic’ of decentralisation in the WHO (Beigbeder, Reference Beigbeder2018: 24).

Much of the foregoing springs from the flaws in the constitutional design of the WHO. Ditching the super-majority rule would unleash the WHA's potential to legislate global health law responsively. Liberating the IHR (2005) from its straightjacket would allow the Organization to act timely on global health problems. Delegating formal enforcement powers to the Executive Board and Secretariat would raise the consequences of ignoring the Regulations. Broadening the Director-General's role from technician and administrator to policymaker would revamp the office into an active coordinator of international health efforts. Integrating regional organisations into a cohesive structure under the leadership of the Executive Board and Secretariat would reduce the transaction costs of exploiting the WHO Constitution globally. None of the above is credibly achievable in the foreseeable future, since amending the Constitution requires a super-majority in the WHA [article 60(a)]. International bodies such as the Executive Board and Secretariat also suffer from a ‘democratic deficit’ (Tallberg et al., Reference Tallberg, Sommerer, Squatrito and Jönsson2013: 257); empowering them could counter-productively trigger wider legitimacy crises. Above all, to empower WHO organs is to swim against the tide of international law and politics, which is still dominated by relatively weak international institutions and relatively strong sovereign states (Ip, Reference Ip2010).

Through the Constitution and the WHA, member-states – including authoritarian ones unaccountable to their own citizens – are the only principals who hold the various organs of the WHO accountable (Distefano and Ruger, Reference Distefano, Ruger, Mastroianni, Kahn and Kass2019). Constitutional delegation of power from states to international organisations occurs when its benefits, in the form of reduced transaction costs for bargaining efficient agreements and decisions, positive externalities and better division of labour, exceed the costs of resting content with no international organisation or putting up with a dysfunctional existing organisation (Okma et al., Reference Okma, Kay, Hockenberry, Liu and Watkins2016). States have their reasons for wanting to resist international organisations becoming too autonomous, unleashing excessive agency costs (Nielson and Tierney, Reference Nielson and Tierney2003; Klabbers, Reference Klabbers2015). And a sovereign state can terminate its own membership of international organisations unilaterally, of course; but such an exit may be extremely costly; as witness the United Kingdom's messy exit from the European Union in January 2020 (Jarman et al., Reference Jarman, Greer and McKee2020). Most member-states therefore stay put most of the time. But this simply reinforces the status quo. There will be no world health governor with global authority and enforcement powers, as stakeholder states are unlikely to yield further sovereignty absent a major shock (Gostin et al., Reference Gostin, Sridhar and Hougendobler2015). Thus, an effective global health policy requires an alternative governance structure to coordinate independent yet interdependent actors (Ruger, Reference Ruger2013).

Without a major shock, the WHO is unlikely ever to experience another ‘constitutional moment’. There are signs that the ongoing COVID-19 pandemic, which has globally infected almost 16 million people, claimed the lives of at least 634,000, and inflicted massive economic costs on all inhabited continents as at 25 July 2020, may be culminating into just such a shock. But whether this shock would eventuate into a renewal or abandonment of the WHO Constitution remains to be seen. President Donald Trump condemned the WHO for being ‘China-centric’ and announced a suspension of voluntary contributions from the United States on 14 April 2020, in reaction to the Organization's repeated praises of China's transparency in handling the Wuhan outbreak despite evidence to the contrary (Gostin, Reference Gostin2020). Then on 29 May 2020, Trump claimed that the United States will terminate its relationship with the WHO. Other critics of the WHO's COVID-19 performance, such as Tom Tugendhat, chair of the United Kingdom Parliament's Foreign Affairs Committee, proposed the establishment of a parallel or even replacement body known as ‘G20 for Public Health’ to share health information (UK Parliament Foreign Affairs Committee, 2020). These sentiments may not be shared by most governments of the world, but an overhaul of the global health system, including the WHO, after this pandemic seems inevitable.