World Health Organization : The mandate of a specialized agency of the United Nations

PART I : The institution

Chapter 4

WHO FUNCTIONS AND THEIR CATEGORISATION

The functions of an international organisation are the actions that allow the organisation to cope with the problems it intends to solve. Therefore, the tasks of an organisation are strictly linked with its mandate. For this reason, this chapter is meant to be an introduction to World Health Organization's main tasks in order to better understand the next part, which will deal with WHO's mandate. The reader will have to be patient and read this chapter through, in order to have a complete overview on the Organization, after having read about its history and structure in the previous chapters. The second part of this work will deeply analyse the central issue of the WHO's mandate.

Early in its history, the WHO specified a series of actions, among which, for example, a programme to address yaws. The actions, which the WHO took to deal with this problem, became its critical tasks and the prototype for many WHO successful programmes. At this point, the WHO defined its role as coordinator, holding international symposia, as trainer, offering fellowship to national staff and as disseminator. In this way the international community started to be aware of the fact that the WHO had a set of tools that can be used to face a given problem[1].

Despite this historical introduction about WHO's tasks, the legal source of WHO's functions is article 2 of the Constitution[2]. It contains 22 paragraphs which describe a wide range of activities and functions. What impresses the reader is the unsystematic way in which they are listed, as they do not seem ordered according to any particular priority. Paragraphs (h) and (i) actually represent activities, as the prevention of injuries or the improvement of nutrition, housing and sanitation, rather than proper functions.

Even though the way article 2 is drafted does not facilitate the categorisation of the functions, many authors have tried to classify them in different groups. The research for the present contribution found out different attempts of classifications, which show the controversies and the difficulties to reach a final categorisation. The main problem concerning the categorisations is that they are not characterised by a clear rationale for what should be included, and, as a consequence, they often reflect the biases of the authors. The result is, therefore, often a confused view on what the WHO should do.

In the following paragraphs, first, I will present some of the attempts of categorisation; secondly, I will try to define which WHO's functions constitute its comparative advantage; thirdly, I will describe one of the most important WHO's functions, that is the 'quasi-legislative' one.

4.1. Attempts of categorisation

The first attempt of categorisation came about when, right after the formulation of article 2, the drafters of the Constitution themselves thought that it would be useful to rationalise the long list of functions. The summary report of the International Sanitary Conference refers to six interrelated categories:

• general coordination;
• cooperation with other organisations;
• research and technical services;
• promotional and educational activities;
• field operations regulatory measures[3].

A subsequent attempt, although very similar, is that one of the Director-General, who regrouped WHO's function in five categories, in a report to the 97th session of the EB[4]:

• direction and coordination on international health work;
• assistance;
• epidemiological and statistical service;
• research;
• normative role.

One of the most interesting attempt of categorisation, according to my research, is the one formulated by Dr André Prost, who is now the Director of the Department of Government and Private Sector Relations. He classifies WHO's functions as follows[5]:

• Development of new concepts in public health.

The WHO is the base to exchange views, to suggest policies and strategies which could improve public and individual health, as from the role of district hospitals to a proposal for an ideal diet.

• Determination of the state-of-the-art on certain scientific issues, and the international validation of the scientific consensus achieved.

WHO experts review the latest scientific evidence, assess the quality of the supporting documentation and issue guidelines and standards.

• Facilitation of the dialogue between donors and beneficiaries, between north and south, between rich and poor, as equal partners.

The WHO should constitute a forum of discussion, to which member states and other actors can present their needs and concerns.

• Coordination, or sometimes the implementation, of international programmes against major scourges.

This necessitates an international input beyond the capability of bilateral cooperation, the development and the provision of validated tools and methodologies, and a strict evaluation of impact.

One of the clearest attempt of categorisation is that one from Dr Dean Jamison, Dr Julio Frenk and Dr Felicia Knaul[6], who create a more general distinction between :

• Core functions, that transcend the sovereignty of the nation state, and therefore makes up the core of international health cooperation. They address problems of the 'global commons', "in which individual decisions based on property rights are made ineffective by the fact that use of resources cannot be contained within boundaries"[7]. The two core functions are the promotion of international public goods and the surveillance and control of international externalities. With respect to the first core function, the authors consider research and development, harmonised norms and standards, information and databases, consensus-building on health policy as public goods. The second core function refers to the capability of assuring an opportune response to global threats, and to control the international transfer of health risks.
• Supportive functions, that deal with problems that take place within individual countries, but which may justify collective action at an international level, because of shortcomings in national health systems. As these functions supplement tasks which are primarily the responsibility of nation states, they are called supportive. An example is given by the mobilisation of resources, such as money and knowledge, to support countries with special developmental needs.

The most classical attempt of categorisation is the one shaped by Beigbeder[8] and reported by Strada[9] in his dissertation. It is the following:

• normative activity;
• operational activity;
• research;
• education and information.

4.2. The comparative advantage

For the purpose of the present contribution, I take into consideration, as the most important function of the World Health Organization, the one stated in the beginning of article 2, in paragraph (a). Function of the WHO shall be "to act as the directing and coordinating authority on international health work". I consider this function to represent the essential task of the Organization, and, in economic terms, its comparative advantage.

In this respect, "it is interesting that the Technical Preparatory Committee, in its proposal for the WHO's Constitution, listed as an overarching function that 'the World Health Organization should be the general and coordinating authority in international health work', while other functions were listed as a means to pursue this central aim"[10].

The same function is attributed to the Organization by the 9th general programme of work, in a way which virtually encompasses all other functions and activities of the WHO. "WHO's directing and coordinating functions include the search for international consensus on health problems of global priority and the most effective ways of assisting countries to solve them, and advocacy of measures to mobilize international resources and action for health, including humanitarian assistance. They also comprise what is often referred to as normative function of WHO, that is, monitoring the health situation and trends throughout the world; proposing conventions, regulations, norms, standards and guidelines related to health; and stimulating research, the advancement and application of knowledge, including the bioethical dimensions"[11].

As the definition of the 9th general programme of work suggests, considering the coordinating and directing function as the main task of the WHO gives the opportunity to encompass the frequent dichotomy between normative or technical cooperation activities. In fact, the WHO maintains its role of coordinating and directing agency in both kind of activities. Normative activities can be defined as "the business of exhortation, asserting values, specifying goals, and proclaiming norms"[12]; whereas technical cooperation activities concern direct assistance to governments, usually in low and middle income countries, upon their request, to strengthen their health system. The WHO is worldwide considered an authority in both fields. The balance between these two kinds of activities, within the Organization, has been object of debate since its earliest years. For example, "as part of its opposition to what was perceived as socialised medicine the United States government strongly supported normative, rather than technical, cooperation activities"[13]. The 1960s brought in as member states numerous developing countries and this caused a shift towards technical cooperation activities. Since the 1980s, this trend has been criticised by large financial donors to the Organization because technical cooperation activities account at least 70% of WHO's regular budget.

Besides the distinction between normative and operational activities, a further simplification consists in assuming that normative activity is strictly linked to the global level and technical cooperation activity to the country level. For example, "knowledge generated at the global level is often derived from the testing of knowledge through technical cooperation at country level. Similarly, technical cooperation frequently depends on knowledge shared at the global level"[14].

Defining WHO's main task as being a directing and coordinating agency goes beyond any kind of attempt of categorisation, and leaves a wide margin of discretion in the interpretation of WHO's mandate. It indirectly means that the WHO undertakes both normative and operational activities and at two levels, the global and the regional one.

Dr Gavin Yamey, in a recent article on the British Medical Journal, defined three aspects by which the coordinating and directing function of the WHO can be described. It is important to have a better understanding of what it is meant by WHO's 'comparative advantage', or as he calls it, 'added value'[15].

• Defining global standards.

One of WHO's comparative advantage is to set global standards. It produces invaluable guidelines, reports, and training manuals used by health systems worldwide. The credibility own by the WHO depends on its governance mechanism, thanks to its near universal representation, and on its 'convening power'. "Wherever you need a global consensus on a tough issue", said Dr Jonathan Quick, Director of the Essential Medicine Department, "we have the mechanisms where - because we have representative oversight with a scientific core - we can get expert groups together"[16].

• Technical expertise.

The WHO has the means to provide technical expertise, which is generally aimed to prevent, control or treat diseases. With respect to this function, the WHO acts also as guidance for other institutions. Just to make an example, "if the WHO notes a rise in resistant malaria in a country, requiring a switch from chloroquine to more expensive drugs, it should alert the World Bank so that the bank can plan its country support accordingly"[17].

• Country support.

The previous chapter illustrated the role of the WHO at country level. In order to comply to its function of technical and policy support to countries, the WHO initiates practical projects, coordinates health programmes, distributes materials for health professionals and seeds money to mobilise additional external resources.

It is interesting to highlight a linguistic tendency which has seen a shift in the terms used to define country support. Since the late 1970s, the term technical cooperation has been used rather than the term technical assistance, to emphasise the partnership WHO seeks to develop with member states. The donor-recipient relationship is refused in favour of "the principle that each country has the sovereign right to develop its national health system and services in the way that it find most rationale and appropriate to its needs"[18].

Furthermore, it often happens that countries are in such a poor condition that it makes it extremely complicated, nearly impossible, to receive benefit from the WHO. The first kind of help WHO should, therefore, provide has to be directed towards the establishment of adequate resources and of a consciousness which will make countries able to exploit funds in the most productive way. It is what is called capacity building[19].

According to Dr Yamey, the comparative advantage of the WHO is being a directing and coordinating agency within three aspects: defining global standards, giving technical expertise and providing country support.

As I will demonstrate at the end of this contribution, such a directing and coordinating authority in international health work constitutes the WHO's comparative advantage, at a technical level, as shown by Dr Yamey, as well as at a political level. At this point I refer to the conclusions of this dissertation.

4.3. A particularity: the normative activity

Before entering the second part of this work, it is important to highlight the exact meaning of WHO's 'normative activity', as it is defined by paragraph (k) of article 2. According to this article, the WHO can "propose conventions, agreements and regulations, and make recommendations with respect to international health matters and perform such duties as may be assigned thereby to the Organizations and are consistent with its objective". The Constitution provides the WHA with the authority to adopt conventions or agreements and regulations and to make recommendations[20].

The Constitution refers to conventions or agreements "with respect to any matter within the competence of the Organization"; to regulations concerning: "(a) sanitary and quarantine requirements and other procedures 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 pharmaceuticals and similar products moving in international commerce; (e) advertising and labelling of biological, pharmaceutical and similar products moving in international commerce"; and to recommendations "with respect to any matter within the competence of the Organization".

Referring to the nature of the normative activity, Alexandrovicz[21] makes a classification of the specialised agency of the United Nations according to the kind of law-making functions. The author inserts the WHO in the category of those specialised agencies characterised by an international law-making by quasi-legislative acts. What this means is made clear by reading the articles of the Constitution dealing with conventions, regulations and recommendations.

Referring to conventions and agreements, article 19 affirms that they "shall come into force for each member when accepted by it in accordance with its constitutional processes", and, referring to regulations, article 22 affirms that they "shall come into force for all members after due notice has been given of their adoption by the WHA except for such members as may notify the Director-General of rejection or reservations within the period stated in the notice".

The legislative function of the WHO is, for this reason, often defined as quasi-legislative and the produced documents as not binding. Recommendations are not obligatory for definition. For what it concerns conventions, the member states have just to respect the obligation to present the draft of the convention to the organs competent for its ratification. Once the convention has been analysed, the member state has to communicate to the Director-General whether it decides to comply with the document or not. If it does comply, it has to periodically report to the Director-General the achievements concerning the matter of the convention; if it does not comply, it has to explain to the Director-General the reasons of its decision. With regard to regulations, they can be adopted by the WHA by a majority vote. The WHA has to give notice of their adoption. After such notice has been given, they come into force for all members without need of individual ratification, acceptance or approval. The member states also have an opportunity to opt out by notifying the Director-General of rejection or reservation within the period stated in the notice.

In order to exemplify what I expressed above, examples can be offered concerning such quasi-legislative instruments.

As an example of WHO convention, I recall the Framework Convention on Tobacco Control (FCTC)[22]. It is the world's first international tobacco control treaty, and it legally binds signatory states to take measures aimed at reducing tobacco consumption[23]. The WHO deemed necessary to create a new legal instrument to address the silent epidemic, as the tobacco menace has often been called, referring to issues as diverse as tobacco advertising and promotion, agricultural diversification, smuggling, taxes and subsidies.

The 1970s saw a rising interest in the fight against tobacco and the WHO launched a programme with this aim, yet with no purpose of codification. In 1995, the WHA took the initiative to call for a report from the Director-General on the possibility to create an international instrument for the tobacco fight. The following year, the WHA asked the Director-General to work on a convention, according to article 19, to make the member states comply with anti-tobacco measures. The first step towards the creation of this document was made on 24 May 1999, when the WHA opened the way for multilateral negotiations regarding to a set of rules and regulations that will govern the global rise and spread of tobacco and tobacco products in the next century. A resolution was adopted calling for work to begin on the FCTC. In May 2000, the WHA unanimously adopted a resolution which formally launched the political negotiations which commenced the 16 to 21 October 2000 in Geneva. An Intergovernmental Negotiating Body has been established. Its last meeting was while I was there, from 25 to 29 October 2002, and the next one will be held from 17 to 28 February 2003. It is programmed to be completed in May 2003.

The participation to the preparatory process of this document is so wide that the FCTC was defined by Ambassador Amorim of Brazil, the chairman of the Intergovernmental Negotiating Body, as "the first multilateral instrument to cover a public health concern"[24]. The fact is that tobacco is an issue which touches various kind of people and sectors, because it does not respect national boundaries, cultures, societies and socio-economic strata. As Dr Brundtland said, "the FCTC will activate all those areas of governance that have a direct impact on public health. Science and economics will mesh with legislation and litigations. Health ministers will work with their counterparts in finance, trade, labour, agriculture and social affairs ministries to give public health the place it deserves"[25].

An example of regulations according to article 21, are the International Health Regulations. They were adopted by the 22nd World Health Assembly on 25 July 1969 and they represent a revised and consolidated version of the previous International Sanitary Regulations (1948 and 1951)[26]. The purpose of the International Health Regulations is "to ensure the maximum security against the international spread of diseases with a minimum interference with world traffic"[27]. Following the increasing emphasis on epidemiological surveillance for communicable disease recognition and control, the International Health Regulations are aimed at:

• strengthening the use of epidemiological principles as applied internationally;
• detecting, reducing or eliminating the sources from which infection spreads;
• improving sanitation in and around ports and airports;
• preventing the dissemination of vectors;
• and, in general, encouraging epidemiological activities on the national level so that there is little risk of outside infection establishing itself.

Moreover, I want to present the Model List of Essential Medicines[28] which shows a different approach from the normative one which, in this case, would have been too rigid to apply. I could report many other examples, but the 25th Anniversary of the WHO Model List of Essential Medicines was recently celebrated on 21 October 2002.

The first Model list of Essential Medicines was formulated in 1977[29] and it has been constantly updated every two years. Essential Medicines are "those that satisfy the priority health care needs of the population. They are selected with due regard to public health relevance, evidence on efficacy and safety, and a comparative cost-effectiveness. They are intended to be available within the context of functioning health systems at all times in adequate amounts, in the appropriate dosage forms, with assured quality and adequate information, and at a price the individual and the community can afford".[30] In the list, medicines are specified by international non-proprietary name (INN) or generic name with no reference to brand name or specific manufactures. The Model List of Essential Medicines is to be seen as a type of regulation, in terms of a model both for product and for process. It was not designed as a global standard, but it was meant as a guide for the development of national and institutional essential medicine lists. As a model product, it includes consideration about cost-effectiveness, evidence-based clinical guidelines, public health and financial aspects. As a process model, it provides components as collecting and reviewing evidence and a transparent development process with various rounds of external review[31]. The Essential Medicine list can be considered as a global concept, which can be applied in any country, because it is flexible and adaptable to many different situations. It is, therefore, evident the absence of binding consequences for the member states of the WHO.

The WHO normative function, after all, keeps the same characteristics of the law-making of many other specialised agencies of the United Nations and of international organisations as a whole. The reason of the developing of a quasi-legislative function originates from the fear of national governments to loose their authority[32]. Even if governments are totally in favour of international organisations, because they facilitate collaboration among member states, they are often not willing of shifting their normative prerogatives towards a superior entity.

Thus, although governments understand the importance and necessity of an universal legislation, they do not want international organisations to undertake their exclusive powers. Referring to this problem, for example, Alexandrowicz recalls that originally it was proposed to give the delegates of the WHA full power to sign international conventions on behalf of their governments. However, this proposal was dropped, respecting article 19 which relies on the consent principle[33].

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Edited by Aldo Campana,