The role of the World Health Organization in the global health governance

Malichenko Vladislav Sergeevich ORCID: 0000-0003-3136-8054 PhD in Law Senior Researcher of the Department of Social Legislation, Institute of Legislation and Comparative Law under the Government of the Russian Federation 117218, Russia, g. Moscow, ul. Bol'shaya Cheremushkinskaya Ul, 34 vlad.malichenko@gmail.com Other publications by this author

Introduction

          Human health issues have gradually been integrated into the agenda of the UN specialized agencies and other international intergovernmental organizations in the context of ensuring the achievement of the Sustainable Development Goals (SDGs), as well as the development of effective measures to contain the formation of threats to human and state security in the field of health. Under the influence of these trends and recognition of the importance of finding systemic solutions to coordinate the activities of the entire variety of actors in international relations regulating health issues, the concept of "global health management" has gradually been formed in foreign scientific literature ^{[7, p. 1-17]}.

Historical stages of the formation of international legal regulation of health protection

          The development of international legal regulation of the sphere of health protection began under the influence of cooperation between states to develop effective approaches to countering the spread of infectious diseases. Population migration and the development of trade processes have increased the rate of spread of infectious diseases in the European region. In particular, 6 major cholera outbreaks were registered in 1817-1923, which predetermined the main focus of international cooperation at this historical stage ^{[2, pp.66-73]}.

At the initiative of the French Government, the 1st International Conference on Sanitation was organized in 1851 to develop measures to curb the spread of cholera around the world from India. In total, in the period from 1851 to 1938, 14 International conferences on sanitation were held, following the results of some International Sanitary conventions were adopted, which became the first normative legal acts of a universal nature in the field of health protection ^[12].

It should be noted that the peculiarities of the preparation of drafts of international sanitary conventions have demonstrated two important trends in the development of international legal regulation of the sphere of health protection that have survived to the present. Firstly, the dependence on the availability of convincing scientific data in the development of regulatory measures to combat certain diseases. Secondly, the need to assess the extent of regulatory consequences on the trade sphere, since the introduction of quarantine measures or other restrictions could negatively affect the implementation of trade activities.

The need to ensure a sustainable dialogue regarding the development of international sanitary conventions, as well as the subsequent sustainable exchange of information on measures to counter the spread of diseases determined the expediency of forming a permanent international organization. In December 1907, guided by an agreement signed in Rome by representatives of 12 countries, it was decided to establish the International Bureau of Public Hygiene (IBOG). However, the IBOG did not remain the only international organization in the field of health protection for a long time. In June 1913, within the framework of the Rockefeller Foundation, an International Health Commission was formed to disseminate the achievements of medical science and the development of sanitary systems around the world ^{[6, pp. 129-140]}. In 1919, the League of the Red Cross was established, coordinating the provision of assistance to victims of natural disasters, epidemics, as well as refugees and other persons outside the zones of military conflict.

The increase in the number of international organizations regulating health protection issues has determined another characteristic trend of international legal regulation of the sphere of health protection, expressed in institutional pluralism, which is rapidly increasing in the context of the scale of threats and challenges of a global nature in the field of health protection.

Threats and challenges of global health

          Over the past decades, under the influence of globalization processes, socio-economic upheavals, a number of systemic problems have emerged in the field of human health protection at the international level, which have determined the rethinking of the role of healthcare in a comprehensive system of international security.

          Technological progress, which made it possible to provide access to antibacterial therapy and vaccines, restrained the spread of many infectious diseases, significantly reducing infant mortality and increasing the life expectancy of the population. However, the pandemics of the H1N1 influenza virus, Ebola virus, Middle East acute respiratory syndrome, and COVID-19 coronavirus infection have once again actualized the need to find effective international legal solutions that reduce the socio-economic consequences of their spread ^{[15, pp. 1449-1454]}.

          The issues of the origin of pathogens of some infectious diseases are becoming increasingly relevant to the need for the formation of measures aimed at countering possible acts of bioterrorism. In particular, the resolution of the World Health Assembly (WHA) 58.29 emphasizes the importance of ensuring safety when using infectious agents in the framework of research in laboratories to prevent possible outbreaks of infectious diseases ^[5].

          Paradoxically, the expansion of access to medical care and the use of the results of scientific progress, which made it possible to achieve a significant increase in life expectancy, has formed a new challenge to the global health system, expressed in a change in the demographic structure of the population. The aging of the population is accompanied by an increase in the prevalence of chronic non-communicable diseases (oncology, diabetes mellitus, cardiovascular diseases), leading to disability of the population and an increase in the need for long-term use of various health technologies (medicines, medical devices, etc.). The total economic losses associated with a decrease in productivity due to NCDs are estimated at $47 trillion, which is 75% of world GDP ^[2]. The recognition of the systemic consequences of the spread of NCDs was the preparation of Political Declarations on this issue following the results of three high-level meetings organized by the General Assembly (UNGA) in 2011, 2014 and 2018.

As noted earlier, access to health technologies is a key element in ensuring effective containment of the spread of infectious pandemics and NCDs. The high cost of healthcare technologies has a significant impact on socio-economic indicators, forming a significant burden on the well-being of each person. In particular, up to 90% of the population in developing countries purchase medicines at their own expense, being the second most important item of expenditure for families after food ^[21].

An important step towards the final approval of the comprehensive global health agenda in the activities of international organizations was the approval by the UN General Assembly in 2015 of the Sustainable Development Goals (SDGs), where one of the 17 SDGs was defined as "Ensuring a healthy lifestyle and promoting well-being for everyone at any age". The formation of the SDGs in the field of health protection made it possible to summarize the list of the most significant threats to human security in this area and to determine the need for the participation of organizations of the UN system, as well as other actors of international relations in their solution.

The concept of "global health management"

          The formation of a whole spectrum of systemic threats to human security in the field of health protection, as well as the increased participation of international intergovernmental organizations and other actors of international relations in their solution has rightly raised questions about the need to systematize international cooperation on these issues.

          The use of the word "global" is not typical in the context of the study of regulation of any spheres of public relations within the framework of the science of international law and was usually used when discussing the problems of extraterritorial influence of the legislation of states or national authorities on international relations ^{[20, p.1-28]}. The issues of countering threats and challenges in the field of health protection are the most representative example of changing the established scientific approach to the study of international legal regulation of certain spheres of public relations.

First of all, it is necessary to note the fundamental role of actors in international relations who are not traditional subjects of international law in ensuring the right of everyone to the highest attainable level of health. In particular, transnational corporations (TNCs) of the medical and pharmaceutical industries, acting as the main driver of technological development, have a significant impact both on expanding access to life-saving methods of diagnosis and treatment, and restricting access, especially among vulnerable categories of the population. The problem of the responsibility of TNCs for ensuring the human right to health has repeatedly been systematically considered within the framework of special procedures of the Human Rights Council and human rights treaty bodies ^[17,18].

Another group of international actors involved in regulating the sphere of human health protection includes public-private partnerships. According to one of the definitions formulated in the scientific literature, global public-private partnerships in healthcare are defined as cooperation relations that go beyond state borders and unite corporations, industry associations and intergovernmental organizations to achieve a common goal based on a mutually agreed division of labor ^{[3, pp.549-561]}. As an example of public-private partnerships, the Global Alliance for Vaccines and Immunization (GAVI) should be mentioned in order to expand access, as well as support research and development of vaccines.

The second distinctive element of the international legal regulation of the sphere of health protection is the increase in the systematic participation of international intergovernmental organizations, which traditionally do not define the main task of solving global health problems. In particular, it should be noted the activities of the FAO on the formation of measures to counter antibiotic resistance, the ILO on the establishment of social security guarantees, the WTO on the development of practices for the use of flexible measures to protect intellectual property rights, UNESCO on the formation of bioethics standards.

Under the influence of the presented trends, gradually in the foreign scientific literature, more and more attention was paid to the conceptual understanding of the concept of "global health management", in the context of developing approaches to effective coordination of the entire variety of international actors in regulating the sphere of health protection ^{[10; 13; 14, pp.1-10]}. Summarizing doctrinal sources, as well as documents of international organizations, it is possible to formulate a definition of the concept of "global health management, by which it is necessary to understand the processes aimed at ensuring effective coordination of the activities of all participants in international relations in the field of health protection, achieving agreed global goals, as well as prevention and countering emergencies in the field of health ^{[1, p.6-20]}. However, to date, the question of determining WHO's place in the implementation of the concept of "global health management" remains open.

Features of WHO's activities at the present stage

One of the main reasons for the formation of institutional disunity at the international level in regulating the sphere of human health protection is dissatisfaction with the implementation of the statutory powers of the World Health Organization. The role of WHO in the global health management system is the most discussed issue of the last decade ^{[8, pp.1424-1428; 9, pp.389-393]}. To date, one of the main successes of the organization is the eradication of smallpox, which in many ways became possible due to the unprecedented and rare moment of cooperation between the United States and the Soviet Union. However, it should be noted that even during the so-called golden era of smallpox eradication, WHO continued to be in internal debates about the main mission of the organization.

In the context of the globalization of threats and challenges in the field of health protection, as well as the increasing participation of international actors in international legal regulation, it seems that the main role of WHO is to act "as a governing and coordinating body in international health protection activities." However, WHO has so far failed to gain a foothold in the role of the main leader of international efforts in countering global challenges in the field of health protection. This thesis is confirmed by the fact that the discussion of such serious threats to the well-being of mankind as NCDs or antibiotic resistance has been held at the UN General Assembly in recent years.

In accordance with Article 57 of the UN Charter, WHO is a specialized agency of the UN. The Organization's mandate, defined in Article 2 of the WHO Constitution, establishes 22 tasks in the field of health protection at the international level. Theoretically, all spheres of public relations, directly or indirectly influencing human health issues, are within the competence of WHO. One of the approaches to reforming WHO's activities is the concretization and prioritization of tasks within the framework of the WHO Charter. Most of the reports analyzing the organization's activities emphasize the breadth of the mandate, which does not allow focusing on the most pressing issues of health protection, and in conditions of a shortage of funding for activities leads to an aggravation of the management crisis ^[19].

One of the reasons for the insolvency of WHO's activities should be highlighted the commitment to the application of acts of "soft law" in the organization's activities. According to the Charter, WHO has significant normative potential, expressed in the possibility of applying three types of normative legal acts: agreements, recommendations and rules. Binding acts are rules and agreements. For the first time, WHO initiated the process of developing mandatory acts in accordance in 1996, when the WHA commissioned the Director General (WHA49.17) to develop the WHO Framework Convention on Tobacco Control (WHO FCTC). The second normative legal act of a universal nature is the WHO International Health Regulations (IHR) 2005, establishing the order of interaction of states to counteract global threats of an infectious nature. The remaining acts adopted by WHO are advisory in nature, and are the norms of "soft law". According to a number of scientists, the norms of soft law occupy an important place in the development of international legal regulation ^{[11, pp.419-515; 16, pp.579-610]}. However, in a situation where it is necessary to form uniform requirements and obligations on the part of States in ensuring the human right to the highest attainable level of health, it becomes ineffective.

Among other systemic problems that have formed in the activities of WHO, it is necessary to highlight the inconsistency of the activities of WHO regional offices, inefficient financing mechanisms, expressed in the predominance of voluntary contributions from States and non-governmental organizations.

Summarizing the barriers presented in the implementation of WHO's powers to ensure effective coordination of the activities of international organizations in the system of "global health management", a number of recommendations should be formulated to reform the Organization's activities. In particular, it is proposed to develop a special procedure for WHO's interaction with international and regional organizations and other participants in international cooperation to redistribute the tasks of certain Organizations in order to fully implement its mandate.

In the context of the recent US announcement of withdrawal from the organization, the issue of determining sustainable financing mechanisms for the Organization's activities is becoming increasingly relevant. Changing the ratio of voluntary and mandatory payments without reference to a specific topic of the organization's activities, as well as a balanced distribution of contributions between participating countries and other parties will ensure a consistent approach to solving the most problematic issues in the field of health protection.

The need to systematize the activities of international organizations and other international actors and to form a list of obligations with respect to ensuring the human right to health determines the expediency of developing a plan of normative activities within the framework of the following General programs of the organization. This approach will ensure an adequate level of attention to the need to develop universal regulatory legal acts in the field of health protection, affecting issues such as access to healthcare technologies, the implementation of research activities, and the rational use of antibiotic therapy.

Conclusion

          Summarizing the analysis, it should be concluded that since the formation of the first initiatives in the field of regulation of health issues at the international level until today, a number of characteristic trends have been formed, expressed in a rapid increase in threats and challenges to human security of a global nature in this area, the expansion of the number of international intergovernmental organizations involved in the regulation of this area, as well as an increase in the roles of various actors in international relations who are not subjects of international law. Under the influence of the presented trends, the concept of "global health management" has been formed, under which it is necessary to understand the processes aimed at ensuring effective coordination of the activities of all participants in international relations in the field of health protection, achieving agreed global goals, as well as prevention and response to emergencies in the field of health.

          The main issue in the practical understanding of the implementation of the concept of "global health management" is the understanding of the role of WHO as a specialized UN agency regulating issues in the field of health protection at the international level. Based on the criticism of the Organization presented in the scientific literature, as well as guided by the current challenges of global health, a number of recommendations were formulated regarding the improvement of WHO's activities. In particular, it was proposed to develop a plan of norm-setting activities within the framework of the next General Program of the WHO organization, to introduce a special procedure for interaction with various international organizations and other actors, as well as to change the system of financing the organization's activities by setting a higher percentage of mandatory contributions of participants.

The systemic nature of the problems in the field of health protection, as well as the formation of the concept of "global health management" in the foreign scientific doctrine determines the need for further research of the features of international legal regulation of the sphere of health protection in the domestic science of international law.