It then considers whether the use of global administrative law to limit and review the use of emergency power is sufficient in itself, or whether it obscures broader issues that should be raised in relation to the World Health Organization, the International Health Regulations and the architecture of the international order. This paper explores whether the GAL provides adequate constraints on the exercise of WHO's emergency powers. Initially, WHO's emergency powers rested exclusively with the Executive Board, which could direct the Director-General to “combat epidemics, participate in the organization of medical assistance to victims of disasters, and carry out [emergencies].
63 World Health Organization Sixty-fourth World Health Assembly Resolutions and Decisions Annex WHA58/2005/REC/1 Revision of the International Health Regulations WHA58.3.
III AILMENTS OF EMPIRE: PROBLEMS RAISED BY EMERGENCY POWERS
Even if the assembly had such input, "information asymmetries" of the principal/agent relationship mean that delegates may not act in ways that their constituencies have anticipated.94 Thus, representative democracy is not strong in acute health governance. Members of the emergency committee are selected "on the basis of the expertise and experience required" for that committee: IHR 2005, above n 65, art 48(2). Hanrieder and Kreuder-Sonnen illustrate one of the particular problems with emergency decisions: Securitization and what they call the "emergency trap".104 Securitization is the process of taking a politicized issue (e.g. an infectious disease) and turning it into an existential threat ( death) against a referent object (a particular population).105 Securitization of health issues can give political priority to the fight against disease and sharpen the focus on global body politics.
Securitization and the contingency trap can be seen in WHO's performance in the development and application of the 2005 IHR.
IV TRIALLING A REMEDY: GLOBAL ADMINISTRATIVE LAW
There is a high degree of overall transparency at WHO: reports from the Director-General and Executive Board, and reports from the General Assembly are readily available online. 153 World Health Organization Strengthening Response to Pandemics and Other Public-Health Emergencies: Report of the Review Committee on the Functioning of the International Health Regulations (2005) and on Pandemic Influenza (H1N H1N1 IHR Report] at xiv. 155 “List of Members of , and advisors to the International Health Regulations (2005) Emergency Committee on Ebola” World Health Organization
For the right to democracy at the state level from the perspective of the international community see Thomas M Franck. Affected states can directly nominate at least one member of the Emergency Committee,164 which ensures representation (and therefore participation) and emphasizes claims to legitimacy via democracy and efficiency. 168 World Health Organization “Statement on the 1st Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa” (8 August 2014) at 1.
169 See World Health Organization “Statement on the 2nd Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa” (22 September 2014); World Health Organization. 174 "Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola outbreak in West Africa", above n 168. 192 World Health Organization "WHO Statement on the first meeting of the International Health Regulations (2005) (IHR 2005) Emergency Committee on Zika virus and observed increase in neurological disorders and neonatal malformations” (February 1, 2016).
Independent reviews of the Ebola response (Ebola Panel) and the effectiveness of the 2005 IHR (resulting in the IHR Ebola Report) were undertaken. 210 Report of the World Health Organization Ebola Interim Assessment Panel (7 July 2015); and Implementation of the International Health Regulations (2005): Report of the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response – Report by the Director-General of the Sixty-Ninth World Health Assembly A69/21 ( 13 May 2016) [IHR Ebola Report]. Implementation of the International Health Regulations (2005) Report of the Review Committee on the Operation of the International Health Regulations (2005) in relation to the 2009 (H1N1) Pandemic A64/10 at 66–67.
The most recent overview of the WHO's emergency response is the Ebola IHR report, which was instigated on the recommendation of the Executive Board.
V TAKING AIM AT THE HEART: DISSECTING GLOBAL ADMINISTRATIVE LAW
Whether these limitations to GAL principles can be justified or whether they point to more structural problems is the subject of the last part of this paper. 240 See World Health Organization Tobacco Industry Strategies to Undermine Tobacco Control Activities in World Health Organization: Report of the Expert Committee (July 2000); World Health Organization "WHO Director-General's Response to Tobacco Hearings" (October 13, 2000); and WHO Framework Convention on Tobacco Control, 21 May UNTS 166 (opened for signature 16 June 2003, entered into force 27 February 2005). Or New Opportunities to Demonstrate Responsibility Int'l Org L Rev 1 at 4–5 for negotiation discussions with Indonesia regarding the sharing of influenza.
Review is one of the stronger GAL principles visible in the exercise of WHO's emergency mandate. Another quasi-judicial option is the position of ombudsman in the Security Council's 1267 sanctions committee, created in response to criticism of the sanctions committee's lack of accountability in decisions regarding entry on the ISIL (Da'esh) and Al-Qaida sanctions list.302 The ombudsman is a. The decision-maker's ability to overturn an ombudsman's recommendation is problematic in the case of the WHO - at present this would require a mere opinion from the Director-General rather than unanimity in a panel.
304 See the “Access to Section Information” Office of the Ombudsman of the 1267 Committee of the Security Council
324 "Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola outbreak in West Africa", above n 168. 354 Armand Spreecher "Challenges in the Management of the West African Ebola Outbreak" in Nicholas G Evans, Tara C Smith and Maimuna S Majumder (ed) Ebola's Message: Public Health and Medicine in the Twenty-First Century (MIT Press, Cambridge, 2016) 73 at 80. Lakoff locates the problem in WHO's cross-border "two regimes of global health": global health security (involving securitization of and disease preparedness) and humanitarian biomedicine (involving infrastructure development and prevention).360 IHR and emergency management are part of the security regime,361 yet WHO's work on pandemics forces it to engage with the humanitarian side of its role in emergencies .
Any emergency response is “structurally inseparable from the political and economic determinants of the outbreak.”371 Emergency decision-makers and proponents of the GAL should take this into account.
VI A CONCLUSION, A BEGINNING, A NEVER ENDING DEFEAT
Emergencies (and their effect on trade) can have a constructive effect on the development of health law. Periods of fruitful collaboration typically follow global health emergencies: the original International Sanitary Conferences after cholera and the Industrial Revolution, the WHO Constitution after World War II, and the IHR after SARS and globalization are all products of serious health hazards.374 Ebola could also have a similarly productive effect if the UN goes ahead with its proposal to take over control of emergency aid if the WHO fails to make improvements.375 The fact that many reforms take place after However, emergencies can also obscure the darker, more difficult issues: the structural underfunding within WHO of preventative initiatives such as health care infrastructure, the complicity of financial institutions in dismantling existing public health systems, and complacency about the disproportionate impact of PHEICs on countries with weak healthcare systems, exacerbated by globalisation. GAL should not be merely applied as a "filigree" veil over the ills of the international order.
The risk of GAL - and it is real - is that it convinces most customers that it is enough on its own. The IHR report on Ebola notes that the development of international law for medical emergencies is a "cycle of continuous improvement".377 This is true. However, this is not a cycle that should be based on the maintenance of existing structures where they perpetuate the more sinister aspects of global health law.
Around the. To paraphrase Rieux, that we may suffer never-ending defeat, that our victories may not last, are no grounds for giving up the struggle.378.
VII BIBLIOGRAPHY
World Health Organization “Biographies of members and advisers of the IHR Emergency Committee on the Ebola outbreak in West Africa” World Health Organization
World Health Organization “Statement on the 3rd Meeting of the IHR Emergency Committee on the Ebola Outbreak in West Africa” (23 October 2014). World Health Organization “Statement on the 4th Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa” (21 January 2015). World Health Organization “Statement on the 5th Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa” (10 April 2015).
World Health Organization "Statement on the 6th meeting of the IHR Emergency Committee on the Ebola outbreak in West Africa" (7 July 2015). World Health Organization "Statement on the 7th Meeting of the IHR Emergency Committee on the Ebola Outbreak in West Africa" 5 October 2015. World Health Organization "Statement on the 8th Meeting of the IHR Emergency Committee on the Ebola Outbreak in West Africa" (18 December 2015).
World Health Organization “Statement on the 9th Meeting of the IHL Emergency Committee on the Ebola Outbreak in West Africa” (March 29, 2016). Emily A Bruemmer and Allyn L Taylor “Institutional Transparency in Global Healthcare Law: The World Health Organization and the Implementation of International Health Regulations” in Andrea Bianchi and Anne Peters (eds) Transparency in International Law (Cambridge University Press, Cambridge, 2013) 271.
