Thesis

The World Health Organization uses soft law as an effective means of promoting global

health. But the organization needs (to improve) through a more forceful focus on its normative

mission, an increased members’ buy-in to their obligations and commitments to the World

Health Assembly (WHA) recommendations, strengthened regular compliance reporting, and

afforded voice and participation of non-state actors. (Discuss your theory of soft and hard law,

i.e. complements, alternatives, or antagonists as binary or on a continuum, as set out in the

Gregory Shaffer article.) and a more forceful focus on its normative mission.1

Using a hard law contracting complement, in addition to its soft-law instrument, the

WHO can galvanize commitment, foster compliance among member states, and reduce

members’ quick, self-serving withdrawal upon conflict with their individual interests.

(By focusing more strongly on its normative mission and enforcing more effectively its

regulatory compliance, the WHO can alleviate problems encountered during international health

crises like Ebola, SARS, and Covid-19 pandemics.)

Introduction

The World Health Organization (WHO) is the international facilitator of delivery of

global health services. The WHO primarily uses soft law to deliver global health. Soft Law2

“refers to obligations that are not formally binding but may nonetheless lead to binding hard

law.” Soft Law constitutes a residual, evolving set of regulations that permit growth and

1
Lawrence O. Gostin, Devi Sridhar & D. Hougendobler, The Normative Authority of the World Health
Organization, 1 – 10 Public Health 705 (2015).
2
Gregory C. Shaffer & Mark A. Pollack, Hard versus Soft Law: Alternatives, Complements,
and Antagonists in International Governance, 94 Minn. L. Rev. 706, 706 (2010).
adaptation rather than rigid restriction or dogma.3 Soft Law outlines guidelines that create

expectations of future conduct or recommended behavior without recrimination.

Soft law consists of non-binding agreements among actors. It creates health norms

without the binding nature of international law. Soft Law is the most effective means of

delivering global health because it can provide health services and care quickly, less costly, and

less bureaucratically.

Hard Law refers to legally binding, precise obligations that delegate authority for

interpreting and implementing the law. 4 It manifests three characteristics: Precision of language

in rules, clear obligations of the parties’ commitments to enforcement, and identification and

delegation to decision makers to interpret and adjudicate issues when appropriate.5 Hard Law

constitutes binding norms, such as formalized treaties and statutes. It has value in the provision

of global health, when appropriate. However, most participating state actors are reluctant to be

bound by the rigors of hard law.

The WHO has the power to issue formal, binding regulations —hard law — but the

organization has developed norms through a range of soft instruments, such as global strategies,

action plans, and guidelines.6 The WHO rarely uses hard law. In fact, the WHO has only

adopted two hard-law treaties — The World Health Organization Framework Convention on

Tobacco Control (adopted 2005) and The International Health Regulations (IHR) (adopted

2005).7

Non-binding soft law is the WHO’s preferred method of enacting global health law,

rather than by treaties or hard law. Unlike the more structured hard-law regimes, such as

3
Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 Number 1 J. Legal Anal. 171 (2010).
4
Id.
5
Id.
6
Lawrence O. Gostin & Devi Sridhar, Global Health and the Law, 370 New Eng. J. Med. 1732 (2014).
7
International Trade, Intellectual Property, and Human Rights, global health does not comprise a

formalized set of laws to which countries must adhere. (So, is that a problem for the delivery of

global health under your thesis?) Despite soft law’s preeminence in global health, the WHO has

limitations in solely using soft law because it lacks teeth in implementing the full scope of its

normative power and mission, carrying out its recommendations, and ensuring members’

commitment and compliance.8 But soft and hard law can complement each other as well as

constitute alternative or antagonistic approaches to global health. (FTN – supra note 1) (Discuss

Shaffer and Pollack)

Mandating contractual buy-ins for state actors in a hard-law paradigm and encouraging

the participation and increased voice of non-members on proposed advisory boards have the

potential to promote states’ stakeholder buy-in, foster members’ collaboration with government

and non-government entities (NGOs), and diminish member disassociation and withdrawal due

to differing agendas. Hard contractual buy-ins for WHO membership represent a hard-law

(complement) to reduce the disassociation and withdrawal characteristic of the soft-law

mechanism because the WHO can incorporate precision in its recommendations, establish clear

member obligations to the mission with non-state actor consensus, and adjudicate compliance

and enforce penalties.

(how do you mandate contractual buy-ins/hard-law contracts for state actors and what are the
incentives and penalties for state actors to make your thesis plausible?)

8
Gostin, supra note 5.