WHO Constitution (1948)

During the 1946 International Health Conference, state delegates adopted the WHO Constitution under articles 55 and 57 of the UN Charter, establishing an interim commission to subsume within WHO all the responsibilities of predecessor organisations: OIHP, LNHO and the UN Relief and Rehabilitation Administration’s Health Division.7 The WHO Constitution established three governing organs: the World Health Assembly (WHA), the policy-making body comprising all member states, each with a single vote; the executive board, an executive programme-developing subset of WHO members; and the secretariat, carrying out the decisions of the Assembly and board through an elected director–general and appointed staff.8 Sixty-one states signed the WHO Constitution on 11 July 1946, after which came into force on 7 April 1948.

Recognising a pressing postwar imperative to facilitate international cooperation,9 WHO’s first stated constitutional function would be ‘to act as the directing and coordinating authority on international health work’.10 The constitution granted the WHA unparalleled normative authorities to adopt international health standards: recommendations (article 23) as well as legally binding conventions (article 19) and regulations (article 21). The constitution extended the Organisation’s policy leadership and technical assistance to all manner of disease prevention and health promotion activities, laying the foundation for 75 years of global health governance (see figure 1).

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Figure 1

Seventy-five years of global governance under WHO: select milestones. IHR, International Health Regulations.

Shifting from global norms to pursue a technical agenda

While WHO was born as a normative organisation with robust treaty making powers under its constitution, it had by the 1960s all but abandoned international lawmaking as a tool to advance the right to health. WHO’s chief legal officer rationalised:

The limited degree to which WHO has entered into the field of international legislation is due to a considerable extent to the difficulty of drawing up and maintaining up-to-date international conventions, agreements or regulations on technical questions as well as to the differences in the scientific and technical development within its Member States.13

Other UN specialised agencies were producing copious international regulations and multilateral conventions to govern substantive issues within their respective purview;14 however, WHO—while holding authority over the ISC, soon to be renamed the International Health Regulations (IHR)—long avoided such policymaking, looking to technical consensus on biomedical advances as a central focus of its early governance.

WHO remained averse to negotiating multilateral normative agreements, focusing instead on technical guidance and country assistance. Without new global standards to codify public health consensus, WHO shifted to address health issues through direct action in the absence of policy guidance. The Organisation’s vision narrowed, with the then director-general viewing WHO personnel simply as ‘catalysts who, working on projects, pass on to their national counterparts the skill and knowledge needed to attack a specific health problem’.15 Turning its attention to purely technical enterprises, which it approached through a medical lens, WHO adopted a vertical, disease-specific approach to health. Its technical agenda focused largely (1) at the international level on communicable disease elimination or eradication, including most prominently malaria, tuberculosis, plague, cholera, yellow fever and smallpox; and (2) at the domestic level on country assistance through medical training and technical support, often delegating country assistance to its six regional offices.16

Decolonisation and a new international economic order

WHO’s Secretariat has always been mindful of maintaining and expanding its membership. To this end, it created a legal fiction by categorising the withdrawn states as merely ‘inactive members’, ushering in the eventual return of Soviet Socialist Republics to full membership in the late 1950s and early 1960s. With the return of these states and the rise of decolonised nations—especially in sub-Saharan Africa—WHO would be pressed anew to consider social medicine and government health systems to realise the right to health.17

As decolonisation progressed and the UN rapidly expanded, nascent member states pushed for a ‘new international economic order’ to moderate the inequitable effects of the international economic system.18 ‘Healthy development’ would become a watchword within WHO. By voting in concert in the WHA and enlarging the executive board, developing states pushed WHO to advance health equity through medical technology transfers and public health systems.19 WHO would come to emphasise maldistributions of wealth, focusing on health equity to create a ‘new international health order’.20 With the election of Halfdan Mahler as director-general in 1973, WHO would come to champion primary care and social determinants of health.21 Together, these developments marked a pivotal moment in WHO’s history as it shifted towards promoting equitable healthcare systems worldwide.

Declaration of Alma-Ata

For WHO, health was not just the absence of disease but also a state of complete physical, mental and social well-being that resonated with broader goals of healthy development. In the 1970s, WHO made significant strides towards advancing primary healthcare, culminating in the historic Declaration of Alma-Ata. WHO developed a ‘health-for-all’ strategy to attain ‘by all citizens of the world by the year 2000 of a level of health that would permit them to lead socially and economically productive lives’.22 Grounded in norms of health equity and human rights, this focus on health for all became an integral part of national development, moving away from vertical hospital-based technologies towards horizontal public health systems.23 This marked a moment of great hope, as WHO officials proclaimed ‘the onset of the health revolution’.24 The pinnacle of this revolution was the International Conference on Primary Healthcare, held in Alma-Ata, USSR (now Almaty, Kazakhstan) in 1978 (see figure 2). The Conference adopted the groundbreaking Declaration on Primary Healthcare, which came to be known as the Declaration of Alma-Ata.25

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Figure 2

International Conference on Primary Health Care, September 1978 (WHO).

WHO was again seen as the principal leader in global health governance, as nations throughout the world looked to WHO in promoting primary healthcare under the Declaration of Alma-Ata. With increasing international cooperation in health, WHO in 1980 achieved a vertical, disease-specific achievement that became WHO’s crowning achievement: the eradication of smallpox.26 Yet, the commitments made in Alma-Ata were never fully realised. The rise of neoliberal economic agendas and the promotion of low-cost, results-driven health interventions pushed WHO away from the Declaration of Alma-Ata and towards a narrower focus on ‘selective’ primary healthcare, which centred on disease-specific technological interventions rather than comprehensive strategies to advance public health.27 In this pushback against WHO’s health for all strategy, high-income nations steadily reduced financial contributions to the WHO budget just as the Organisation faced a novel threat in the HIV/AIDS response.

The global AIDS response

Since its first reported cases in 1981, the HIV/AIDS pandemic has changed the world. The AIDS community mobilised and demanded fundamental reforms from the ground up. People living with AIDS demanded robust research funding, expedited regulatory approvals and affordable access to treatment. They fiercely opposed traditional disease control policies, including compulsory testing, named reporting, travel restrictions and isolation or quarantine. Advocates saw coercive measures as violations of human rights and personal liberty, and pushed for a rights-based approach to health.

The upheaval caused by the HIV/AIDS pandemic profoundly changed WHO. In the early period of burgeoning fear, stigma and discrimination, WHO established the Global Programme on AIDS (GPA), led by Jonathan Mann. Mann saw the pandemic through a human rights lens, advancing the idea that public health and human rights were not in tension but synergistic.28–30 Conceptualising human rights violations as a key driver of HIV, the GPA operationalised human rights in WHO programming.31

WHO’s 1987 Global Strategy for the Prevention and Control of AIDS solidified human rights principles, including non-discrimination and equitable access to care, in WHO governance.32 The UN General Assembly underscored WHO’s human rights leadership, resolving to ensure ‘a coordinated response by the United Nations system to the AIDS pandemic’.33 The GPA became the largest programme in WHO’s history but came under fire by then director-general Hiroshi Nakajima, whose efforts to rein in GPA’s independent advocacy led to Mann’s resignation—stymieing WHO’s human rights advocacy and leaving WHO’s AIDS programming in disarray.34 35

Proliferation of global health actors

The global health and development landscape expanded rapidly in the late 20th century, with WHO struggling to maintain its institutional authority. Conservative donor states pushed a ‘neoliberal’ agenda for international development, shifting funds away from WHO and towards vertical initiatives with more narrow mandates.36 With this neoliberal approach driving increasing World Bank investment in the health sector, low-income countries were pushed to privatise health systems and introduce user fees, which were thought to be more economically efficient but led to harmful consequences for national health systems and patients.37 These shifts weakened WHO’s leadership further, limiting its institutional impact and sowing doubts about its constitutional role as the directing and coordinating authority on international health.38

A dizzying array of new actors arose to tackle the most consequential global health issues—from HIV/AIDS, tuberculosis and malaria to vaccines and scientific innovations. As the AIDS pandemic grew, states in 1994 created a new governance institution, the Joint United Nations Programme on HIV/AIDS.39 AIDS would become a dominant theme in other global initiatives in the early 21st century, notably the Global Fund for AIDS, Tuberculosis and Malaria (Global Fund) in 2002 and Unitaid in 2006. The President’s Emergency Plan for AIDS Relief in 2003 became the largest aid programme in American history. WHO was no longer the driving force in the global response to the greatest health challenges of the era, as WHO sought to reorient itself to maintain its authority among rising global health partnerships.

The early 21st century saw a multilevel proliferation of global health partnerships, bringing together international institutions and national governments with philanthropic organisations, civil society and transnational corporations.40 Global public-private partnerships (GPPPs) emerged, often with innovative financing and governance.41 Beyond the Global Fund and Unitaid, two vital GPPPs were formed to expand scientific innovations and equitable allocation of vaccines and other life-saving products: Gavi, the Vaccine Alliance in 2000 and the Coalition for Epidemic Preparedness Innovations (CEPI) in 2017. These GPPPs were financed and governed by a broad array of public/private actors, with WHO as only one among many partners.

The 21st century also brought a major expansion of global health funding and influence from the Bill and Melinda Gates Foundation. Established in 2000, the Gates Foundation is a major partner in an array of initiatives and GPPPs, including the Global Polio Eradication Initiative, the Global Fund, Gavi and CEPI. Yet, despite this array of new actors, WHO continued to possess unique advantages that set it apart, including a constitutional mandate to lead and coordinate global action, promote international cooperation and adopt international standards.

Framework Convention on Tobacco Control (FCTC)

With Gro Harlem Brundtland’s appointment in 1998, WHO had a director–general with stature and ambition. Although WHO had never before drafted a binding international treaty, Brundtland took on the powerful tobacco industry and succeeded in achieving WHO’s first, and to this day only, treaty: the FCTC.44 The FCTC’s bold aim is to protect present and future generations from the devastating consequences of tobacco consumption and exposure to tobacco smoke. Following extensive drafting and negotiation by an intergovernmental negotiating body, the WHA unanimously adopted the FCTC in May 2003. The ‘framework convention–protocol’ model employed in the FCTC has allowed WHO to achieve wide acceptance of the Convention, and then for the FCTC governing body, the Conference of the Parties, to develop more specific tobacco control obligations over time.45

International Health Regulations (2005)

The IHR serve as the primary instrument for the prevention, detection and response to potential public health emergencies of international concern. Following longstanding calls for their reform, the IHR were significantly revised in 2005 following the SARS outbreak.46 The 2005 revision solidified WHO’s legal authority ‘to prevent, protect against, control and provide a public health response to the international spread of disease’47 while avoiding unnecessary interference with international traffic and trade and safeguarding human rights in the public health response. Looking beyond specific infectious diseases, the IHR (2005) adopted an ‘all-hazards’ approach, addressing ‘any illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans’.48 The Regulations required governments to build and maintain core health system capacities49 while also urging high-income states to collaborate and assist low-income states.50 Yet, despite these evolving obligations to support public health capacities and meet IHR responsibilities, many states failed to develop core capacities, and international assistance remained insufficient.

Soft law

Beyond hard law, WHO has adopted an array of soft instruments, including WHA resolutions, guidelines, global strategies, global compacts and declarations (see table 1). While soft law does not create binding obligations under international law, it can nevertheless be politically persuasive and normatively authoritative.51 WHO often opts for soft law, as it is generally faster and easier to negotiate than hard law. Moreover, soft law can sometimes set the stage for hard law treaties, as seen in the FCTC.52

Soft law instruments have come to incorporate binding elements and significantly influence both WHO programmes and national policies. The 2011 Pandemic Influenza Preparedness (PIP) framework reflects a new bargain in global health, with countries agreeing to share influenza viruses with human pandemic potential (needed for surveillance and development of medical countermeasures), and in return, assuring that low- and middle-income countries gain equitable access to the fruits of scientific sharing.53 Beyond WHO, soft law instruments have proven influential in binding the world together to advance sustainable development, with a 2015 UN General Assembly resolution establishing the 2030 Agenda for Sustainable Development, which now guide a host of global priorities under 17 ambitious Sustainable Development Goals.54

WHO sustainable financing

WHO funding is wholly incommensurate with its constitutional mission to act as the leader and coordinator in global health, with its budget less than the size of a single large teaching hospital in the United States of America. WHO is funded through (1) assessed contributions (ACs), ‘membership fees’ provided by member states based on the UN principle of ‘ability to contribute’ and (2) voluntary contributions (VCs) from donors.66 Forty years ago, ACs comprised 80% of the agency’s revenue, but by 2022, that portion had shrunk to 16%. While ACs are predictable and flexible, most VCs are specific and targeted, limiting the Secretariat’s ability to use the funds outside of the goals set by donors. With this imbalance significantly impairing WHO’s ability to set the global health agenda, the WHA resolved in 2022 to incrementally increase ACs to 50% over the following 8 years.67

Amending the IHR

Seeking to codify the lessons learnt from the COVID-19 pandemic, 16 WHO member states proposed 309 amendments to the IHR. With many proposals made on behalf of regions, over 90 member states expressed their dissatisfaction with IHR governance.68 In its final report to the director-general, the review committee regarding amendments to the IHR (2005) endorsed several values to underpin proposed amendments: equity, solidarity and international cooperation; trust and transparency; and sovereignty.69 The Working Group on Amendments to the IHR is currently negotiating a final text.70 As the Regulations are the only near-universal instrument for global health security, states must ensure bold and effective IHR amendments, coordinating these amendments with parallel negotiations on a new pandemic accord.

A pandemic accord

At the height of the pandemic, 25 heads of government and international organisations jointly advocated in March 2021 for a new WHO treaty to galvanise high-level political action.71 Shortly thereafter, the WHA, in its second-ever special session, launched a global process to draft and negotiate a pandemic accord to strengthen pandemic prevention, preparedness, response and recovery.72 This pandemic accord will most likely be negotiated as a framework convention, becoming only the second use of WHO’s article 19 treaty-making authority in its 75-year history. The pandemic accord’s zero draft contains 38 articles, with the most consequential relating to equity, health systems, coordination and cooperation and sustainable financing.73 The 2021 WHA Special Session established an intergovernmental negotiating body to draft and negotiate the treaty.74 Like the FCTC, a conference of the parties would oversee the new pandemic accord, with the power to negotiate binding protocols on crucial issues such as equity, financing and accountability.

Finance

The WHA resolution to gradually raise ACs to 50% of the WHO base budget—based on 2022–2023 levels—by 2030 represents a modest advance. Even if political leaders fulfil their pledge, it leaves two major governance deficits. First, WHO’s overall budget would not increase appreciably. ‘Pockets of poverty’ would prevail, as seen in inadequate funding for non-communicable diseases (NCDs) and mental health. Second, WHO would be beholden to high-income donors for more than half its budget. The unpredictability of VCs impairs WHO’s long-horizon planning and hiring. There is a significant mismatch between the world’s expectations of WHO and its willingness to politically support and sustainably fund the Organisation.

Governance

WHO governance is member state driven, leaving out key stakeholders, and is far less inclusive than modern GPPPs. The Framework of Engagement with Non-State Actors, adopted in 2016,75 indiscriminately lumps together highly disparate non-state stakeholders, including civil society organisations (CSOs), transnational corporations, philanthropic foundations and academic institutions. To gain even limited voice in the Organisation, non-governmental actors must be in ‘official relations’ with WHO, a privilege that the executive board selectively grants to large national and regional actors.76 Consequently, WHO governance rarely reflects the views of affected communities. In turn, CSOs are tepid in their support for WHO, robbing the Organisation of vital advocates in national parliaments.

Norms

While WHO has formidable law-making powers, it has rarely developed robust norms beyond health emergencies and tobacco control. Its twin global health law reforms are bold, but the IHR amendments and a pandemic accord focus solely on health security. WHO has been reticent to codify binding norms on major global health threats. It has never negotiated binding instruments for its health for all strategy—allowing the Alma-Alta Declaration to all but wither. The development of normative standards and innovative financing could accelerate universal health coverage and support the creation of new norms in long-neglected areas, such as NCDs, mental health and injuries.

Human rights

WHO has not vigorously implemented its constitution’s proclamation on the right to health or mainstreamed human rights in global health governance. WHO has no formal relationship with the UN Special Rapporteur on the Right to Health, and despite a budding partnership with the Office of the UN High Commissioner for Human Rights, WHO has never operationalised it to advance human rights in global health. There are concrete steps WHO could take to mainstream human rights into its policies and programmes. Gender, equity and human rights were recently elevated to a WHO department but should be elevated to the assistant director level. WHO could develop a right to health action plan to integrate human rights at all levels of the Organisation.

Equity

WHO has a responsibility to address the structural drivers of inequities within and among countries—beginning with disaggregated data—so governments have detailed understandings of who is left behind and why. Equity mechanisms at the global level have been inadequate. ACT-A was unable to deliver equitable resource allocation during the pandemic. WHO has convened a consultation on a new medical countermeasure platform,77 but its design and financing remain unclear. The pandemic accord zero draft would establish a PIP framework model of access and benefit sharing (ABS), while also seeking greater flexibilities in intellectual property protection. The era where ABS relies on charitable donations should end, replaced by sharing technology and diversification of manufacturing, centred on low-income and middle-income countries.

An inflection point

WHO has had remarkable successes in its first 75 years, from the eradication of smallpox to the advancment of normative instruments on tobacco control and global health security. At its 75th anniversary, WHO is at an inflection point. If WHO can transform its financing, governance and norms; if it can advance the right to health and human rights; if it can create a healthier, fairer world through effective equity mechanisms and partnerships; if it can do all these things and more, WHO could fulfil the vision of the United Nations and its own constitution—becoming the organisation it was always meant to be.