The World Health Organization

Objective, functions and membership

Article 1, the objective. The attainment by all peoples of the highest possible level of health.

Article 2, the functions. Twenty-two of them, lettered (a) to (v), and the ones a law student should know are these.

(a) To act as the directing and coordinating authority on international health work. That is the claim to primacy, and it is a claim about coordination rather than command.

(c) To assist Governments, upon request, in strengthening health services, and (d) to furnish technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments. Consent again, twice stated.

(g) To stimulate and advance work to eradicate epidemic, endemic and other diseases.

(k), the law-making function. To propose conventions, agreements and regulations, and make recommendations with respect to international health matters, and to perform such duties as may be assigned thereby.

(s) to establish and revise international nomenclatures of diseases, of causes of death and of public health practices; (t) to standardize diagnostic procedures; (u) to develop, establish and promote international standards with respect to food, biological, pharmaceutical and similar products.

(v), the sweeping-up function: generally to take all necessary action to attain the objective of the Organization.

Article 3. Membership shall be open to all States.

That is the widest membership clause in this book. Compare Charter article 4, which requires a State to be peace-loving and, in the judgment of the Organization, able and willing to carry out the Charter's obligations, and requires a Security Council recommendation. The WHO Constitution asks nothing. The reason is in the Preamble: unequal development in the control of communicable disease is a common danger, so a State left outside is a hole in the system.

Organs: articles 9 to 37

Article 9. The work is carried out by the World Health Assembly, the Executive Board, and the Secretariat.

The World Health Assembly

Article 10. Composed of delegates representing Members.

Article 11. Each Member is represented by not more than three delegates, one designated as chief delegate, and these delegates should be chosen from among persons most qualified by their technical competence in the field of health, preferably representing the national health administration.

Article 11 is the Constitution's expertise clause, and it should be compared with tripartism in [The International Labour Organisation] and with the National Commission consultation in [UNESCO]. Each agency pulls the delegation away from being purely diplomatic in its own way; WHO does it by asking for health professionals.

Article 13. The Assembly meets in regular annual session and in special sessions convened at the request of the Board or of a majority of the Members.

Article 18 lists its functions, which include determining the policies of the Organization, naming the Members entitled to designate a person to the Board, appointing the Director-General, supervising the Board's financial policies, and instructing the Board on matters where action, study, investigation or a report may be desirable.

The Executive Board

Article 24. The Board consists of thirty-four persons designated by as many Members. The Health Assembly, taking into account an equitable geographical distribution, elects the Members entitled to designate a person, provided that not less than three shall be elected from each of the regional organizations established under article 44. Each such Member should appoint a person technically qualified in the field of health.

Note the drafting. The Board is composed of persons designated by Members, not of Member States as in [The Economic and Social Council]. The person should be technically qualified, but he is designated by a State, so the Board sits somewhere between an expert body and a representative one, and which of the two it is in practice has been argued about for as long as it has existed.

Article 25. Members are elected for three years and may be re-elected.

Article 26. The Board meets at least twice a year. Article 27. It elects its Chairman from among its members and adopts its own rules of procedure. Article 28 sets out its functions, which include giving effect to the Assembly's decisions and policies, acting as its executive organ, submitting a general programme of work, and taking emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action, in particular to authorise the Director-General to take measures to combat epidemics.

The Secretariat

Article 31. The Director-General is appointed by the Health Assembly on the nomination of the Board on such terms as the Assembly may determine, and, subject to the authority of the Board, is the chief technical and administrative officer of the Organization.

Article 37. In the performance of their duties the Director-General and the staff shall not seek or receive instructions from any government or from any authority external to the Organization, and shall refrain from any action which might reflect on their position as international officers; each Member undertakes to respect the exclusively international character of their responsibilities. That is Charter article 100 restated, and [The Secretariat and the Secretary-General] works the principle.

The regional organizations

Articles 44 to 47 provide for the Assembly to define the geographical areas in which it is desirable to establish a regional organization, each consisting of a regional committee and a regional office, the regional committee formulating policies of an exclusively regional character and supervising the regional office. India belongs to the South-East Asia region.

No other specialized agency is decentralised in this way, and the regional structure is one reason the Organization's response can differ from one part of the world to another.

The law-making powers: articles 19 to 23

This is why the Organization is in a law syllabus, and the three powers must be kept apart.

Conventions and agreements: articles 19 and 20

Article 19. The Health Assembly has authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote is required, and such conventions come into force for each Member when accepted by it in accordance with its constitutional processes.

Article 20, the submission duty. Each Member undertakes that it will, within eighteen months after the adoption, take action relative to acceptance, notify the Director-General of the action taken, and, if it does not accept, furnish a statement of the reasons for non-acceptance.

Compare article 19(5)(b) of the ILO Constitution and article IV(4) of the UNESCO Constitution. All three impose a duty to bring the instrument home. WHO's is the most demanding in one respect: a Member that declines must give its reasons, which neither of the others requires.

Only one convention has ever been adopted under article 19, the Framework Convention on Tobacco Control of 2003, which is worth naming.

Regulations: articles 21 and 22

Article 21. The Health Assembly has authority to adopt regulations concerning:

(a) sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease;

(b) nomenclatures with respect to diseases, causes of death and public health practices;

(c) standards with respect to diagnostic procedures for international use;

(d) standards with respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce;

(e) advertising and labelling of such products.

Article 22, the provision that has no equal. Regulations adopted under article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly, except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice.

Read article 22 slowly, because it inverts the ordinary law of treaties. Under [Making a Treaty: From Full Powers to Entry Into Force], a State is bound when it consents; silence binds nobody. Under article 22 a Member is bound unless it speaks, and it must speak within the period the notice states. This is called contracting out or opting out, and it is the closest thing to international legislation in the whole of the specialized agency system.

It is not legislation without consent, and the distinction matters. The Member consented in advance, when it accepted a Constitution containing articles 21 and 22, and it retains the right to reject or to reserve. But the default is reversed, and reversing a default changes behaviour: a government that would never have got a treaty through its legislature does nothing, and is bound.

Two sets of regulations have been adopted under article 21: the International Health Regulations, worked in [The International Health Regulations], and the Nomenclature Regulations, which give effect to the international classification of diseases.

Recommendations: article 23

The Health Assembly has authority to make recommendations to Members with respect to any matter within the competence of the Organization. These bind nobody, and they are the instrument by which most of the Organization's normative work is in fact done, including the guidelines and the model lists that shape national health policy without ever becoming law.

The rest of the Constitution: articles 38 to 82

Committees and conferences, articles 38 to 42. The Board shall establish such committees as the Health Assembly may direct and may on its own initiative or on the Director-General's proposal establish others (article 38), reviewing annually the necessity for continuing each (article 39), and may provide for joint or mixed committees with other organizations (article 40). The Assembly or the Board may convene local, general, technical or other special conferences on any matter within the Organization's competence (article 41) and may provide for the Organization's representation at conferences in which it has an interest (article 42).

Headquarters and the regions, articles 43 to 54. The location of the headquarters is determined by the Health Assembly after consultation with the United Nations (article 43). The Assembly defines from time to time the geographical areas in which it is desirable to establish a regional organization and may establish one with the consent of a majority of the Members situated within each area (article 44). Each regional organization is an integral part of the Organization (article 45) and consists of a regional committee and a regional office (article 46). Regional committees are composed of representatives of the Member States and Associate Members in the region (article 47), meet as often as necessary (article 48) and adopt their own rules (article 49). Their functions under article 50 include formulating policies of an exclusively regional character, supervising the activities of the regional office, and recommending additional regional appropriations. The regional office is the administrative organ of the regional committee, subject to the general authority of the Director-General (article 51), headed by a Regional Director appointed by the Board in agreement with the regional committee (article 52), with staff appointed as agreed between the Director-General and the Regional Director (article 53). Article 54 provided for the Pan American Sanitary Organization and other regional intergovernmental health organisations to be integrated in due course.

Article 52 is worth noticing. A Regional Director is appointed by the Board in agreement with the regional committee, not by the Director-General, which is the constitutional root of the regional autonomy this chapter's criticism section identifies.

Budget, articles 55 to 58. The Director-General prepares and submits budget estimates to the Board, which considers them and submits them with its recommendations to the Assembly (article 55); the Assembly reviews and approves the budget estimates and apportions the expenses among Members (article 56); the Assembly or the Board may accept and administer gifts and bequests provided the conditions are acceptable and consistent with the objective and policies (article 57); and a special fund to be used at the discretion of the Board shall be established to meet emergencies and unforeseen contingencies (article 58).

Voting, articles 59 and 60. Each Member has one vote (article 59). Decisions on important questions require a two-thirds majority of the Members present and voting, and those questions include the adoption of conventions or agreements, the approval of agreements bringing the Organization into relation with the United Nations and other organizations under articles 69, 70 and 72, and amendments to this Constitution; other questions, including the determination of additional categories to be decided by two thirds, are decided by a majority of Members present and voting (article 60).

Article 60(a) is where the two-thirds requirement in article 19 comes from, and a good answer names it.

Reporting by Members, articles 61 to 65. Each Member shall report annually on the action taken and progress achieved in improving the health of its people (article 61); report annually on action taken with respect to recommendations made to it and to conventions, agreements and regulations (article 62); communicate promptly important laws, regulations, official reports and statistics pertaining to health published in the State (article 63); provide statistical and epidemiological reports as the Assembly determines (article 64); and transmit, on the request of the Board, such additional information pertaining to health as may be practicable (article 65).

Legal capacity, articles 66 to 68. The Organization shall enjoy in the territory of each Member such legal capacity as may be necessary for the fulfilment of its objective and for the exercise of its functions (article 66), and such privileges and immunities as may be necessary, its representatives, officials and employees likewise enjoying such privileges and immunities as are necessary for the independent exercise of their functions (article 67), all to be defined in a separate agreement (article 68).

Relations with other bodies, articles 69 to 72. The Organization shall be brought into relation with the United Nations as one of the specialized agencies referred to in article 57 of the Charter, by agreement approved by a two-thirds vote of the Assembly (article 69); shall establish effective relations and cooperate closely with other intergovernmental organizations (article 70); may, on such conditions as it thinks proper, make suitable arrangements for consultation and cooperation with non-governmental international organizations and, with the consent of the government concerned, with national organizations (article 71); and may, subject to approval by a two-thirds vote, take over from any other international organization or agency functions, resources and obligations within its competence (article 72).

Article 71 is UNESCO's article XI and the Charter's article 71 again, and the pattern across the agencies is worth stating: each provides its own gateway for non-governmental organisations, and each requires the State's consent for a national one.

Amendment, articles 73 and 74. Texts of proposed amendments shall be communicated by the Director-General to Members at least six months in advance of their consideration by the Assembly, and amendments come into force for all Members when adopted by a two-thirds vote of the Health Assembly and accepted by two-thirds of the Members in accordance with their respective constitutional processes (article 73). Article 74 makes the Chinese, English, French, Russian and Spanish texts equally authentic.

Compare article 73 with article 22. An amendment to the Constitution requires positive acceptance by two thirds of the Members. A regulation under article 21 binds a Member that says nothing. That contrast is the sharpest illustration of what article 22 does.

Interpretation, articles 75 to 77. Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice unless the parties agree on another mode of settlement (article 75). The Organization may, upon authorization by the General Assembly or under an agreement with the United Nations, request an advisory opinion of the Court on any legal question arising within its competence (article 76), which is Charter article 96(2) in operation; and the Director-General may appear before the Court on the Organization's behalf in such proceedings (article 77).

Signature and entry into force, articles 78 to 82. The Constitution remains open to all States for signature or acceptance (article 78); States become parties by signature without reservation as to approval, signature subject to approval followed by acceptance, or acceptance, acceptance being effected by deposit of a formal instrument with the Secretary-General (article 79); it came into force when twenty-six Members of the United Nations had become parties (article 80); it is registered under article 102 of the Charter (article 81); and the Secretary-General informs States parties of the date it came into force and of subsequent accessions (article 82).

A worked example

The Health Assembly adopts, by 130 votes to 20 with 10 abstentions, a convention on the marketing of infant formula and a set of regulations on quarantine at ports. State AA votes against both, does nothing for two years and then says it is bound by neither. State BB notifies a reservation to one regulation within the period stated in the notice. State CC, which is not a Member, wishes to join. The Board wishes to authorise the Director-General to act against an epidemic.

The convention. Article 19 requires a two-thirds vote for adoption, satisfied here, and provides that it comes into force for each Member when accepted by it in accordance with its constitutional processes. State AA is therefore not bound by it. But article 20 obliged State AA, within eighteen months, to take action relative to acceptance, to notify the Director-General of the action taken, and, not having accepted, to furnish a statement of the reasons for non-acceptance. Doing nothing for two years is a breach of article 20, though not of the convention.

The regulations. Article 22 makes them come into force for all Members after due notice, except for such Members as notify the Director-General of rejection or reservations within the period stated in the notice. State AA said nothing, so it is bound, and its vote against is irrelevant.

State BB's reservation. Notified within the period, it takes effect according to its terms, so State BB is bound by the rest.

State CC's application. Article 3: membership is open to all States. There is no recommendation requirement and no qualifying condition of the kind in Charter article 4.

The Board's emergency power. Article 28 permits the Board to take emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action, and in particular to authorise the Director-General to take measures to combat epidemics.

Change one fact: the Assembly instead adopts a recommendation. Article 23 permits it on any matter within the Organization's competence, and it binds nobody, whatever the majority.

Distinctions table

What it does NOT mean

The definition of health is not a legal test. It is a Preamble statement, and it defines the Organization's field rather than any individual's entitlement.

The right to the highest attainable standard of health is not made justiciable by the Constitution. It is declared as a principle; the enforceable form is in the human rights treaties that followed.

Article 22 does not dispense with consent. A Member consented to the opting-out mechanism when it accepted the Constitution.

A regulation is not a treaty. It is adopted by the Assembly and enters into force by article 22, without ratification.

Directing and coordinating authority is not command. Articles 2(c) and 2(d) require the request or acceptance of Governments.

The Executive Board is not a body of States. Article 24 composes it of persons designated by Members.

Limits and criticism

The Organization has extraordinary formal powers and almost no enforcement. Article 22 makes regulations binding on Members that stay silent, and nothing in the Constitution provides a sanction when a bound Member does not comply, as [The International Health Regulations] shows in the events of the last decade.

Article 19 has been used once in more than seventy years. An agency with power to adopt binding conventions on any matter within its competence has chosen almost never to use it, preferring recommendations and guidelines, which is a choice about political feasibility rather than about law.

Its budget is dominated by voluntary earmarked contributions rather than by assessed dues, which means that donors, including private foundations, effectively choose the programmes, and the criticism made of the voluntarily funded bodies in [UNDP and UNEP] applies here to a body that is a treaty organisation.

Regionalisation cuts both ways. Articles 44 to 47 put real authority in regional committees and offices, which makes the Organization responsive to regional conditions and makes a single global response harder to direct, and the regional directors are elected regionally rather than appointed by the Director-General.

Quick revision

Constitution adopted 22 July 1946 by 61 States at the International Health Conference in New York, in force 7 April 1948; a specialized agency under Charter article 57; seat Geneva.

Preamble: health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity; the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition; the health of all peoples is fundamental to the attainment of peace and security; unequal development in the control of disease, especially communicable disease, is a common danger; Governments have a responsibility for the health of their peoples.

Article 1: the objective is the attainment by all peoples of the highest possible level of health. Article 2: functions (a) to (v), including directing and coordinating authority on international health work, assistance upon request, eradication of disease, and (k) proposing conventions, agreements and regulations. Article 3: membership open to all States.

Organs, article 9: World Health Assembly, Executive Board, Secretariat. Article 11: up to three delegates, chosen for technical competence in the field of health. Article 24: Board of thirty-four persons designated by as many Members, with equitable geographical distribution and at least three from each regional organization. Article 31: Director-General appointed by the Assembly on the nomination of the Board. Article 37: no instructions from any government.

Law-making: article 19, conventions by a two-thirds vote, binding on acceptance; article 20, act within eighteen months, notify, and give reasons for non-acceptance; article 21, regulations on quarantine, nomenclatures, diagnostic standards, standards for products in international commerce, and advertising and labelling; article 22, regulations come into force for all Members except those notifying rejection or reservations within the period stated; article 23, recommendations.

Articles 44 to 47: regional organizations, each a regional committee and a regional office.

Test yourself

1. How does the WHO Constitution define health, and why does the definition matter?

The Preamble declares that health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. It matters because it fixes the breadth of the Organization's field. If health were only the absence of disease, the functions in article 2 covering nutrition, housing, sanitation, recreation, economic and working conditions, environmental hygiene, maternal and child welfare and mental health would all be outside the mandate. The definition is a statement of principle in a preamble rather than a legal test for any individual entitlement, and it has been criticised as unattainable, since no one is in a state of complete well-being, but it is the basis on which the Organization has treated the social determinants of health as its business.

2. Explain articles 21 and 22 and why they are exceptional.

Article 21 gives the Health Assembly authority to adopt regulations concerning sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; nomenclatures with respect to diseases, causes of death and public health practices; standards for diagnostic procedures for international use; standards for the safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce; and the advertising and labelling of such products. Article 22 provides that such regulations come into force for all Members after due notice of their adoption, except for such Members as notify the Director-General of rejection or reservations within the period stated in the notice. That is exceptional because it inverts the ordinary rule that a State is bound only by what it consents to: here a Member is bound unless it opts out in time. Consent has not disappeared, since the Member accepted a Constitution containing these articles, but the default is reversed, and a government that takes no action finds itself bound.

3. Distinguish the three law-making powers of the Health Assembly.

Article 19 permits the adoption of conventions or agreements on any matter within the Organization's competence, by a two-thirds vote, coming into force for each Member when accepted by it in accordance with its constitutional processes; article 20 then requires each Member, within eighteen months, to take action relative to acceptance, to notify the Director-General, and to furnish reasons if it does not accept. Article 21 permits the adoption of regulations in the five listed fields, which by article 22 bind all Members except those notifying rejection or reservations in time. Article 23 permits recommendations to Members on any matter within the Organization's competence, and these bind nobody. In practice the convention power has been used once, for the Framework Convention on Tobacco Control of 2003; the regulation power twice; and the recommendation power constantly.

4. Who may become a Member, and how does that compare with the United Nations?

Article 3 provides simply that membership shall be open to all States. There is no qualitative condition and no recommendation requirement. Article 4 of the Charter, by contrast, opens membership of the United Nations to peace-loving states which accept the obligations of the Charter and, in the judgment of the Organization, are able and willing to carry them out, and article 4(2) requires a decision of the General Assembly upon the recommendation of the Security Council, so that a permanent member's veto can block admission. The reason for the difference is in the WHO Preamble: unequal development in different countries in the promotion of health and control of disease, especially communicable disease, is a common danger, so excluding a State creates a gap in a system whose whole value depends on covering everyone.

5. Describe the organs of the Organization.

Article 9 provides for the World Health Assembly, the Executive Board and the Secretariat. The Assembly consists of delegates representing Members, each Member sending not more than three, one designated chief delegate, chosen from among persons most qualified by their technical competence in the field of health and preferably representing the national health administration, and it meets in regular annual session and in special sessions convened at the request of the Board or of a majority of the Members. The Board consists of thirty-four persons designated by as many Members, elected by the Assembly with regard to equitable geographical distribution and with at least three from each regional organization, serving three years and re-eligible, meeting at least twice a year, and empowered under article 28 to take emergency measures including authorising the Director-General to combat epidemics. The Secretariat is headed by the Director-General, appointed by the Assembly on the nomination of the Board and, subject to the Board's authority, the chief technical and administrative officer, whose staff by article 37 may not seek or receive instructions from any government.

6. What is the significance of the Preamble's statement about the right to health?

It is the earliest statement in a treaty that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition, made in 1946, two years before the Universal Declaration of Human Rights. Its significance is as an antecedent: it is the source of the formula later used in article 12 of the International Covenant on Economic, Social and Cultural Rights, which obliges States Parties to recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The Constitution itself creates no machinery by which an individual may claim it, so its legal force comes from the instruments it influenced rather than from its own terms.