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Accountability, transparency and good governance
The WHO’s decision-making during an emergency

The World Health Organization (WHO) has a broad, expansive role during a health emergency. Traditionally, the role of the WHO has been normative in nature, providing advice and guidance to member states on best practice during a health emergency. Despite this rather limited explicit legal mandate, the WHO does carry out a number of response functions during a health emergency that go beyond the normative, such as the procurement and delivery of medical supplies, and in some circumstances provides health services in a ‘boots on the ground’ manner. This chapter is concerned with the accountability of the WHO for the exercise of power during these ‘operational activities’. The chapter argues that at present there are limited control mechanisms over WHO operational activities during a health emergency. This is particularly apparent when the WHO operates through an external public-private partnership, such as COVAX, with this ultimately functioning to produce an additional layer of complexity with regards to the achievement of good governance.

The World Health Organization (WHO) has a broad, expansive role during a health emergency, and despite the proliferation of NGOs and public-private partnerships into global health in the past twenty years (Anbazhagan and Surekha, 2021), as well as other international actors encroaching upon the WHO’s mandate (Burci, 2014), it remains the central actor in global health governance. Traditionally, the role of the WHO has been normative in nature, providing advice and guidance to member states on best practice during a health emergency. Indeed, the Organization historically viewed itself as merely a norm-setting body, gathering scientific evidence, synthesising it, and communicating it to member states, and, increasingly, to the general public. However, this role shifted significantly in 2003 during, and after, the outbreak of severe acute respiratory syndrome (SARS), a viral respiratory disease caused by a SARS-associated coronavirus. The WHO director-general at this time took unprecedented steps to recommend travel restrictions to mitigate spread of the virus, including direct calls to action aimed at private industry as well as governments (Eccleston-Turner and Wenham, 2021). Throughout the SARS outbreak, the WHO became central to collating and analysing data, providing technical guidance to states, and indeed travel and trade recommendations to minimise the disease’s spread, even when it had no explicit legal mandate to do so (Heymann and Roider, 2004; Kamradt-Scott, 2010). Indeed, as Kamradt-Scott observed, the WHO now found itself acting simultaneously as ‘real time epidemic coordinator, policy advisor, government assessor, and government critic’ (Kamradt-Scott, 2015). Such was the perceived success of this new role for the organisation during SARS that this role was ‘legalised’ through the post-SARS reforms to the International Health Regulations (IHR) in 2005 (WHO, 2005), where ‘the alert and response mechanisms of the [revised] IHR are modelled on the tools, processes and assumptions that characterized the global response to SARS’ (Burci and Eccleston-Turner, 2020).

Despite the fact that the IHR – the singular piece of binding international law governing infectious disease outbreaks – is intended to ‘prevent, detect against, control, and provide a public health response to’1 the spread of infectious diseases, it is overly focused on prevention and detection, and plays a very limited role in the direct response to an outbreak, beyond affording the director-general the power to make recommendations, in highly limited, specific circumstances (Eccleston-Turner, 2023), recommendations which are often ignored by member states, who prioritise their own self-interest in response to an infectious disease outbreak, rather than the collective good (Tejpar and Hoffman, 2017; Mason Meier et al., 2022). Despite this rather limited explicit legal mandate, the WHO does carry out a number of response functions during a health emergency that go beyond the normative. Most notably, the WHO is actively involved in the procurement and delivery of medical supplies, such as through the COVAX Facility during COVID-19 and the WHO Pandemic Influenza Preparedness Framework, attempting to counter the huge global injustice in access to medicines which exists during health emergencies (Eccleston-Turner and Upton, 2021a, 2021b; Hampton et al., 2021). In some circumstances, such as Ebola in West Africa and the recent outbreaks in the Democratic Republic of the Congo, the WHO has gone as far as to provide health services in a ‘boots on the ground’ manner (Gostin and Friedman, 2014; Wenham, 2017). Due to the limitations of the legal structure of the IHR, these vital response activities are not grounded in IHR, but rather done on the basis of the constitutional mandate of the director-general.

The fact that these operational activities exist outside the legal framework for health emergencies provided by the IHR gives rise to some important questions about accountability and good governance, particularly when things go wrong, or the operations do not function as intended. This chapter begins by outlining why good governance matters for international organisations, notably good governance as a ‘soft’ legal concept, as well as a hard one; it then goes on to question the binary nature of an ‘emergency’ and ‘non-emergency’ distinction, upon which much of the discussions on this issue have been predicated to date; and finally, considers the governance of the WHO’s operational activities during a health emergency.

Why good governance matters

The COVID-19 pandemic has served as the most recent reminder that while good global health governance (GHG) is understood to be vital for an effective and efficient coordinated response to emerging health threats on a global scale (Gostin et al., 2020), the current system ultimately lacks the means and mechanisms through which to ensure good GHG within and between key organisations in global health, most notably the WHO. From the WHO’s initial response to the emergence of COVID-19 – which was criticised by many as being ‘inordinately slow’ (Larinova and Kirton, 2020: 13) – to the organisation’s participation in COVAX amid mounting pressure to achieve global vaccine equity – with the WHO’s authority and calls for solidarity being ignored in favour of policies aligned with vaccine nationalism (Gostin et al., 2020) – the COVID-19 pandemic has marked a new wave of concern with regards to the level of trust in the WHO and the organisation’s legitimacy overall as the central actor in GHG. The criticism surrounding the WHO’s COVID-19 response has sparked discussions and debate with regards to the reimagining of GHG in a post-COVID world (Gostin et al., 2020: Larinova and Kirton, 2020), with it being clear that the achievement of good GHG is vital to rebuild trust in the organisation, although there is considerably less consensus as to what that would involve in practice.

While GHG is understood to be something of a ‘slippery’ concept (Lee and Kamradt-Scott, 2014: 5), with an array of definitions existing within the literature, it is broadly understood to refer to the framework of principles, arrangements, norms and processes (Lisk and Šehović, 2020: 48) utilised by the multitude of actors who share responsibility for addressing and responding to issues in global health (Eccleston-Turner et al., 2018). The actors involved here range from state and non-state actors to international organisations; with the WHO’s role in GHG (WHO, 2013) relating directly to the powers and responsibility conferred upon it in its Constitution to act as ‘the directing and coordinating authority on international health work’ (WHO, 1948: Article 2(a)). Pressure is mounting, however, as a result of the growing need to achieve ‘good’ GHG (Eccleston-Turner and Villarreal, 2022). Precisely what constitutes good GHG, alongside its purpose, has been the subject of much debate within academic and policy circles but, despite the lack of clarity around its precise meaning, its achievement is a clear expectation for all actors involved with GHG (Lee and Kamradt-Scott, 2014); good governance appears to fall into the category of concepts which are difficult to define, but ‘I know it when I see it’, a quote made famous by the US Supreme Court decision in Jacobellis v. Ohio.2 While variations of the key indicators do exist, the principles of transparency and accountability remain consistent as the twin tenets of good GHG (Buse and Walt, 2002) with additional indicators including legitimacy, effectiveness and respect for the rule of law (Lee and Kamradt-Scott, 2014).

The need for greater transparency forms the starting point in the bid to achieve good GHG, with its centrality being widely recognised by academics and policymakers alike (Storey and Eccleston-Turner, 2022). While transparency has ‘no fixed meaning’ and its features are open to interpretation (Gostin and Mok, 2009), the need for transparency in ‘the decision-making process and the implementation of … decisions’, as well as ‘access to information open to all potentially concerned and/or affected by the decisions at stake’ (Storey and Eccleston-Turner, 2022), is vital at both the national and international level. While much of importance attributed to transparency in the context of good GHG emerges as a result of it amounting to an ‘enforcement mechanism’ which can be seen to facilitate or ensure the accountability of GHG institutions, of equal importance is its ability to produce trust and legitimacy (Storey and Eccleston-Turner, 2022). In taking the necessary steps to ensure transparency with regards to the processes and practices utilised by the varying institutions, the relevant stakeholders – such as WHO member states, and increasingly during COVID-19, the general public – are able to develop a clear understanding of how and why decisions have been made, with this often leading to the production of confidence or trust in these practices and, if not, placing stakeholders in a position to call for change and improvements (Storey and Eccleston-Turner, 2022).

Thus, a potential consequence of a lack of transparency at the WHO is reduced trust in the organisation from member states. The result of this is likely to be a lack of willingness to follow WHO recommendations during times of emergency, ultimately causing further damage to its reputation. An example of this can be seen with the widespread use of travel restrictions in the early stages of the COVID-19 pandemic. By April 2020, ninety-six countries had imposed travel restrictions or blanket bans on travel to and from China, where the outbreak was first identified, and approximately 90 per cent of commercial air traffic was grounded, following the introduction of global travel restrictions by 130 countries (Devi, 2020; Kiernan et al., 2020). These restrictions were introduced contrary to the Temporary Recommendations that had been issued by the WHO director-general, following the advice of the IHR Emergency Committee Regarding the Coronavirus Disease Pandemic, which called for states to avoid the introduction of travel restrictions at that time (WHO, 2020; COVID-19 IHR Emergency Committee, no date). This led some scholars to suggest that states had breached their obligations under Article 43 of the IHR, calling into question the ability of the WHO to command the confidence of its member states during an emergency (Habibi et al., 2020; Meier et al., 2020).

As for accountability, while this again has a variety of definitions, it is typically understood to ensure the acceptance of responsibility for one’s actions, alongside the provision of both explanations and justifications (Eccleston-Turner et al., 2018). It is ‘fundamental to the exercise of power’, with GHG actors being expected to have comprehensive mechanisms in place which facilitate the scrutiny of processes, decisions and the subsequent consequences (Eccleston-Turner et al., 2018). For the most part, accountability is therefore largely concerned with the obligations of an institution (Eccleston-Turner et al., 2018), particularly with regards to whether they have been carried out in a satisfactory manner, and to account for the decision or failure to exercise relevant powers (Eccleston-Turner and McArdle, 2017). While accountability may seem like a relatively simple concept to understand, its implementation typically produces difficulties, taking place across multiple levels and incorporating a vast number of requirements (Eccleston-Turner and McArdle, 2017). What is clear, however, is that accountability mechanisms must ensure that GHG institutions are held to account for their actions as much as they hold others accountable, while going beyond purely internal accountability to include external accountability also (Eccleston-Turner and McArdle, 2017). Engaging with the concept of accountability and implementing comprehensive accountability mechanisms is, therefore, vital for good GHG; with the decisions made by GHG institutions often meaning the difference between life and death for the populations of affected nations, particularly during the exercise of emergency powers. External stakeholders must be able to demand explanations and justifications for actions which undermine their national interests or put the lives of their populations at risk but mechanisms which facilitate both transparency (Gostin and Mok, 2009) and accountability are severely lacking at the international level.

Despite the vast responsibilities and powers afforded to the WHO by both its Constitution and the IHR (WHO, 2005), the legitimacy of the organisation has ultimately been called into question as a result of a lack of transparency and the failure to implement comprehensive accountability mechanisms, which are sufficiently robust to defend the organisation from external critique (Eccleston-Turner and McArdle, 2020). COVID-19 has clearly highlighted the tensions which exist in times of emergency between the desires of the WHO to respond effectively and promptly to a health emergency, and the need to pursue transparency and accountability. Indeed, the very fact that an event is an emergency has been used to minimise the importance of accountability and checks and balances or sidestep them entirely.3 Therefore, greater consideration must be afforded to the different modes of accountability utilised both within and beyond the organisation in a bid to ensure the achievement of good GHG, even during an emergency event.

A ‘legal’ emergency

For the most part when considering the good governance of the WHO in an emergency, the focus is on the formal, legal structures the WHO uses to operate during an emergency, that is, the IHR (WHO, 2005). The IHR is the singular binding international legal instrument governing global health security, and central to the activities of the WHO within the regulations is the declaration of a public health emergency of international concern (PHEIC). A PHEIC declaration is made by the WHO director-general, on advice of the Emergency Committee, and empowers the director-general to make Temporary Recommendations to states that, while non-binding, seek to provide public health guidance and counteract unnecessary restrictions states may seek to place on international trade and travel (WHO, 2005; Art. 15). In addition, the PHEIC is typically seen as a clarion call to the international community (Gostin et al., 2019) that there is an outbreak on the horizon, but crucially fails to allocate the WHO or states additional financing in order to prepare and respond. A PHEIC declaration, by its very nature aligned with states of emergency elsewhere in governance structures, can bring the outbreak to the attention of governments beyond the health portfolio, including at presidential or cabinet level, and importantly into the treasury and/or department of defence, mobilising financial and technical assistance (Eccleston-Turner and Wenham, 2021). Indeed, the purported impact of a PHEIC declaration is one of the compelling reasons for its declaration (Gostin et al., 2019). Much has been written about governance of PHEICs, and the explicit powers they confer upon the WHO to act in an emergency (see, for example, Fidler, 2005; Fidler and Gostin, 2006; Eccleston-Turner and Wenham, 2021; Wenham et al., 2021), as well as the need for good governance of these emergency powers, and the accountability and control mechanism surrounding the use of explicit legal powers in a health emergency by the WHO (Eccleston-Turner and Wenham, 2021; Eccleston-Turner and Villarreal, 2022). However, this only tells part of the story, and there are a number of instances where the WHO operationally acts during an emergency, but does so beyond the confines of the PHEIC and the governance system created by the regulations.

For example, there are a number of instances whereby a PHEIC declaration is not made, but the WHO still becomes operationally involved in the response. One such case was the 2014 outbreak of Ebola in West Africa, when the WHO deployed epidemiologists there, and established initial contact tracing, laboratory support and infection control mechanisms, mirroring that which they had implemented in previous Ebola outbreaks (Wenham, 2017), despite the fact that an Emergency Committee had at that point not even met to consider declaring the event a PHEIC. Moreover, during the 2018 Ebola outbreak, the WHO consistently refused to declare the event a PHEIC (despite it being clear the criteria were met (Eccleston-Turner and Wenham, 2021)). By contrast, the WHO was still issuing advice to member states about the application of international travel or trade restrictions, stating that ‘the Committee does not consider entry screening at airports or other ports of entry to be necessary’ (WHO, no date). While this advice is similar to the content of many formal recommendations issued previously under the IHR, it was not promulgated in accordance with the procedure laid out in the regulations, meaning the recommendations lacked normative force and a legitimate basis in the legal structures for health emergency response. Indeed, there are numerous instances where a declaration of a PHEIC has not been made, or has been delayed for wider political reasons, yet the WHO responds to these emergency events (in a normative and operational manner). In such instances the organisation responds outside of the confines of the legal structures and processes created in the regulations for health emergency response. Further, as the following section lays out, the WHO has an entire programme of work on emergency response, which is not structurally aligned to the IHR or the declaration of a PHEIC, in that, the WHO Health Emergencies (WHE) Programme does not require a PHEIC declaration to trigger its activities.

Moving beyond the legal emergencies: WHO Health Emergencies Programme and COVAX

WHO Health Emergencies (WHE) Programme

The WHO Health Emergencies (WHE) Programme was established in 2016 following the Ebola epidemic in West Africa. The WHE Programme was designed to consolidate all of the WHO’s work during health emergencies into a single programme, creating a common structure across all regional offices in order to increase efficiency and cooperation during health emergencies (United Nations (UN), 2016). The programme was designed: ‘to bring speed and predictability to WHO’s emergency work, using an all-hazards approach, promoting collective action, and encompassing preparedness, readiness, response and early recovery activities’ (UN, 2016; para. 10). As part of the WHE Programme, the WHO aims to initiate an on-the-ground assessment within seventy-two hours of being notified of a high-threat pathogen, clusters of unexplained deaths in low-capacity settings or any other event to be determined at the discretion of the director-general (UN, 2016). The programme is headed by an executive director, but ultimately authority for the WHO’s work in emergencies remains with the director-general.

The WHE Programme is overseen by the Independent Oversight and Advisory Committee (IOAC), which was established to provide independent scrutiny of the WHO’s work during emergencies, following organisational and operational failings during the response to the West Africa Ebola epidemic. The first report of the IOAC urged the WHO ‘to undertake major transformation in order to strengthen its organisational capacity to respond to outbreaks and other emergencies, and to restore trust and confidence in its ability to protect global health’ (UN, 2020).

While the WHE Programme has sought to address the shortcomings of the response to Ebola in West Africa, the IOAC has raised several ongoing issues that must urgently be addressed to ensure that the programme functions to the best of its abilities. One such issue is capacity; the report of the IOAC to the 74th World Health Assembly revealed that the WHE Programme is ‘inadequately equipped to deal with a global pandemic while simultaneously responding to other emergencies’ (Syam and Alas, 2021). This issue with capacity is linked to what the IOAC called ‘chronic underfunding’ (UN, 2020), but also to concerns surrounding the ability of the programme to recruit, retain and manage an appropriately skilled workforce to support the work of the programme during emergencies (UN, 2020). Furthermore, while the WHE Programme has successfully engaged in partnerships with civil society and the private sector, such as the Access to COVID-19 Tools (ACT) Accelerator, urgent work is need to clarify the governance structure of WHO partnerships, including ensuring greater transparency at all levels (UN, 2020).

While the introduction of the WHE Programme may have improved communication within the wider WHO structure, it falls short of introducing the kind of structural changes needed to effect significant change to governance within the organisation. For example, the common structure of the WHE Programme has been relied upon to improve coordination between the WHO’s regional offices, but some have suggested that use of the programme in this way simply masks the need for more comprehensive governance reforms, including restructuring of the regional offices, and therefore represents a ‘governance drift’ rather than a much-needed ‘governance shift’ (Mackey, 2016). There is also concern from some commentators that the WHE Programme may weaken the norm-setting function of the WHO by drawing precious resources into functions and operations associated with ‘permanent firefighting’ (Yach, 2016).

Such concerns surrounding the governance of the WHO, particularly with regards to accountability and transparency within the organisation or rather the lack thereof, are further exacerbated in the instances whereby the WHO operates through an external Public-Private-Partnership (PPP). Most recently, this has been evidenced during the COVID-19 pandemic through the WHO’s participation in COVAX, with the remainder of this section offering an insight into the varying issues, questions and concerns surrounding the governance of the organisation which have emerged as a result.

COVAX

Throughout the COVID-19 pandemic, the WHO has acted as one of the main partner organisations of COVAX, the global, multilateral initiative designed to secure equitable access to COVID-19 vaccines (Eccleston-Turner and Upton, 2021a). Its participation raises some interesting questions about accountability at the WHO during its participation in extraordinary partnerships such as COVAX and the COVAX Facility.

For example, one relevant enquiry is to ask whether the WHO’s involvement in the COVAX Facility’s procurement of vaccines is compatible with the WHO’s responsibility to be accountable to its member states. This issue is somewhat complicated by the confidential nature of COVAX’s advance purchase agreements (APAs) and the involvement of other actors, such as Gavi the Vaccine Alliance and The Coalition for Epidemic Preparedness Innovation (CEPI), in their negotiation and completion. Like APAs conducted by the governments of individual states, the details of the purchase agreements completed on behalf of COVAX are generally confidential. This makes it difficult to understand the precise terms of the agreements reached by COVAX, with only details such as the total number of doses generally being made public. This complicates the assessment of the relative success that COVAX has had in negotiating its APAs compared to individual states, which in turn obstructs any inquiry into how well each of the partner organisations has been operating in terms of negotiating agreements for vaccine procurement (Hampton et al., 2021). In the context of vaccine procurement via COVAX, this is perhaps more of an issue for accountability at Gavi than it is for the WHO, because Gavi bears primary responsibility for negotiating purchase agreements on behalf of COVAX (Gavi, 2020). Nevertheless, the WHO is one of COVAX’s main partner organisations. The fact that the precise details of what is perhaps the most important output of COVAX’s work, the APAs, remains confidential is therefore a concern from the perspective of ultimate accountability to WHO member states.

Another question pertinent to the WHO’s involvement in COVAX is how its engagement with the management and delivery of COVAX-supplied doses affects the WHO’s obligations to its member states. Perhaps the WHO’s main role in COVAX has been to coordinate and facilitate the delivery of the vaccines that COVAX has supplied, as well as additional doses donated by individual states. This has involved the creation of the WHO’s ‘Fair Allocation Framework’, designed to ensure that the doses purchased by COVAX are split equitably between all of COVAX’s participating economies (Eccleston-Turner and Upton, 2021a). In this context, ‘equitable’ distribution meant that doses were allocated so that countries received a similar number of doses relative to their population, although many high-income states chose to defer their early allocations, allowing more doses to be allocated to other participating states. In some ways, this aspect of the WHO’s role in COVAX might be seen as being a practical way of fulfilling its mandate to promote the highest attainable standard of health among individuals within its member states. While COVAX has ultimately fallen short of its initial targets for vaccine delivery, it has nevertheless succeeded in delivering doses to participating states more quickly and in larger quantities than would have been possible if states had been left to fight entirely among themselves (Berkley, 2021). The WHO’s role in leading the coordination of the delivery and utilisation of COVAX-supplied doses may therefore be seen as a way of the WHO fulfilling its constitutional mandate.

The question, in terms of accountability, is whether COVAX was the most appropriate mechanism through which the WHO could have pursued equitable access to vaccines. On the one hand, as referenced above, COVAX has contributed to improved, albeit not equitable, access to vaccines, particularly in low-income countries.4 However, on the other hand, the WHO should be accountable to all of its member states, not just those represented by COVAX. Furthermore, the WHO was just one of the partner organisations responsible for the operation of COVAX. This makes the lack of transparency regarding things such as the details of APAs conducted by Gavi more problematic from the perspective of accountability because, while Gavi was the primary negotiator for those deals, they are nevertheless part of the COVAX programme of which the WHO is a key partner. The question is whether or not these transparency concerns are outweighed by the benefits of the WHO’s participation in COVAX.

This may be said to depend on whether or not the WHO could have done more to contribute to equitable access outside of the COVAX initiative. This is a difficult question to answer, but one way of doing so is to compare the deployment of COVAX vaccines to the delivery of vaccines to countries supported by the WHO’s Vaccine Deployment Initiative (VDI) during the 2009-H1N1 influenza pandemic. The VDI was designed by the WHO to facilitate the donation of influenza vaccines from high-income countries with excess doses, to the low-income countries which had been unable to procure their own doses (WHO, 2011). It delivered a total of 78 million doses to low-income countries, out of 122 million doses which had been pledged by high-income donors (Eccleston-Turner and Upton, 2021b). The first of these doses arrived in recipient countries four months after vaccination campaigns got under way in high-income countries which had procured their own doses (Partridge and Kieny, 2010). By comparison, COVAX delivered its first doses to Ghana in 24 February 2021 (WHO, 2021) around two months after the first dose was administered in the UK (GOV.UK, 2021). In total, COVAX has now delivered more than 1 billion doses of vaccine (Gavi, no date). Thus, while COVAX has failed to meet its own targets, its contribution to equitable access to vaccines has arguably been greater than the VDI’s was during the 2009-H1N1 pandemic. Naturally, it is impossible to know how the WHO would have fared had it operated a similar system on its own for COVID-19. However, the fact that COVAX has been more successful than the VDI, for which the WHO acted largely alone, suggests that the WHO’s involvement with it was ultimately of benefit to its member states.

Conclusion

The role of the WHO during a health emergency has been described as ‘managerial’. The use of emergency powers by this international organisation, therefore, has necessitated a consideration of the extent to which the use of these powers aligns with principles of good governance. To date, consideration of the WHOs emergency powers has been limited, in that they have focused on the legal basis of these powers, and the extent to which the exercise of emergency powers aligns with the powers, duties and obligations of the WHO as outlined in the IHR and the WHO Constitution. To this extent, the current debates are grounded within the ideas of responsibility for internationally wrongful acts – formal international law. Such considerations have been rather limited, largely because of the limited development of the law of responsibility for international organisations, and the fact that the rules and principles contained within it lack practical application, especially during an emergency (Eccleston-Turner and McArdle, 2020).

The present chapter has moved beyond this limited, wholly legal consideration of WHO emergency powers, by considering to what extent WHO actions in an emergency – beyond the formal legalistic approaches – are grounded in principles of good governance. Such a consideration is notable because accountability, transparency and good governance are inherently linked to trust and legitimacy; given the significant challenges to the epistemic authority of the WHO during the COVID-19 pandemic, activities which enhance the legitimacy of the organisation are of vital importance. Through an examination of the WHE and COVAX initiatives, and the WHO’s involvement in them, the present chapter has demonstrated that there are very limited control mechanisms over the WHO during a health emergency. This is particularly apparent when the WHO operates through an external PPP such as COVAX, with this ultimately functioning to produce an additional layer of complexity with regards to the achievement of good governance. While concerns surrounding the levels of accountability, transparency and legitimacy within the WHO are by no means a new phenomenon – with trust in the organisation having somewhat declined over time as a result – the experiences throughout the COVID-19 pandemic have ultimately strengthened the need for soft forms of accountability and control over the WHO, especially during an emergency.

Notes

1 Article 2, IHR.
2 Justice Stewart, in attempting to define obscene publications famously quoted, ‘I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, [emphasis added] and the motion picture involved in this case is not that.’ Jacobellis v. Ohio, 378 U.S. 184 (1964), at 197.
3 At the international level see Eccleston-Turner and Villarreal, 2022. For a national perspective on emergency declarations being used to sidestep checks and balances see Grogan, 2022.
4 While ‘equity’ is difficult to define, the contention that COVAX has not delivered equitable access to vaccines is repeated here on the basis that (i) COVAX failed to meet its own target of delivering 2 billion doses before the end of 2021 and, as of April 2023, COVAX has still delivered fewer than 2 billion doses globally; and (ii) that vaccination rates in high-income and upper-middle-income countries are over 79 per cent, whereas the equivalent figure for low-income countries is just 26 per cent. Thus, while COVAX may be considered to have improved access to COVID-19 vaccines, it cannot be said to have delivered equitable access. See COVAX, ‘COVAX data brief: February 2023’, www.gavi.org/sites/default/files/covid/covax/COVAX-data-brief_20. pdf; Our World in Data, ‘Share of people vaccinated against COVID-19, 18 April 2023’, https://ourworldindata.org/explorers/coronavirus-data- explorer?zoomToSelection=true&time=2022-12-31&facet=none&pickerSort=desc&pickerMetric=population&hide Controls=true&Metric=People+vaccinated+%28by+dose%29& Interval=Cumulative&Relative+to+Population=true&Color+by+test+positivity=false&country=Lower+middle+income~Upper+middle+income~High+income~Low+income

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