Global Governance and the Pandemic Dilemma: WHO’s Legal Authority During a ‘Disease X’ Outbreak

INTRODUCTION

In recent weeks, public discourse has been reignited over the World Health Organization’s (WHO) expanding powers during international health crises. Triggered by proposed revisions to the WHO’s Legal Authority – International Health Regulations (IHRs) and the negotiation of a new international pandemic accord, critics argue that these developments could allow the organization unprecedented control over national public health responses during outbreaks such as the hypothetical yet ominously titled “Disease X.”

At the heart of the debate is the question of global sovereignty: should international organizations, particularly one under the auspices of the United Nations (UN), be permitted to dictate public health measures during emergencies? Or does such authority undermine democratic accountability and national sovereignty, particularly in countries like the United States with strong constitutional protections?

“The potential for WHO to issue binding directives during global health emergencies is deeply concerning, especially if those directives supersede national laws or constitutional rights,” says Lawrence Gostin, Professor of Global Health Law at Georgetown University.

This article explores the legal, historical, and political implications of the WHO’s evolving role in pandemic governance. It examines not only the WHO’s authority under current international law but also the practical tensions this poses in the U.S. legal framework, especially amid growing public wariness toward centralized global governance structures.

This tension highlights deeper societal and political divides: globalism versus nationalism, public health security versus civil liberties, and scientific consensus versus individual autonomy. The thesis of this analysis is that the WHO’s proposed powers during a Disease X-type outbreak introduce complex legal dilemmas and contested political values that demand rigorous constitutional scrutiny and democratic oversight.

LEGAL AND HISTORICAL BACKGROUND

The foundation of the WHO’s authority is grounded in the International Health Regulations (2005), a legally binding instrument of international law recognized by 196 countries. Originally designed to monitor and control disease outbreaks, the IHRs require member states to build and maintain core capacities for surveillance, report certain disease outbreaks and public health events, and respond promptly to emergencies.

Under Article 12 of the IHRs, the WHO Director-General has the power to declare a “Public Health Emergency of International Concern” (PHEIC). However, this declaration does not compel member states to follow WHO recommendations; it merely provides guidelines. The current negotiations aim to expand these powers by formalizing compliance mechanisms.

“Historically, international law has leaned heavily on state consent. The principle of state sovereignty is a bedrock of the UN Charter,” notes Curtis Bradley, Professor of Law at Duke University.

Yet the legal evolution of the WHO mirrors broader trends in international law—increasing emphasis on global governance, collective action, and shared responsibility.

In the aftermath of the COVID-19 pandemic, the WHO and its supporters have advocated for stronger, more coordinated legal frameworks. In 2022, the World Health Assembly resolved to draft a “pandemic treaty,” formally known as the WHO CA+ (Convention, Agreement, or Other International Instrument), aimed at fostering cooperation, improving data sharing, and facilitating equitable access to medical resources.

Critics, however, argue that the proposed treaty might allow the WHO to dictate vaccine mandates, lockdowns, and information policies during emergencies. If ratified, the treaty would constitute a binding international agreement under the Vienna Convention on the Law of Treaties.

“The U.S. Constitution provides that treaties made under the authority of the United States shall be the supreme law of the land, but this supremacy is not limitless,” explains John B. Bellinger III, former Legal Adviser to the U.S. State Department. He notes that any international agreement must conform to constitutional protections such as due process and freedom of speech (U.S. Const. art. VI, cl. 2).

Historical precedents are instructive. The WHO’s response to H1N1 in 2009 and the Ebola outbreak in 2014 drew both praise and criticism. The agency’s slow response to Ebola underscored the need for faster decision-making. But its coordination during H1N1—and the heavy influence of pharmaceutical stakeholders—prompted accusations of overreach and lack of transparency.

Peer-reviewed legal literature has also questioned the democratic legitimacy of the WHO’s decision-making structure, noting that the World Health Assembly is dominated by health ministers rather than elected representatives (see: Fidler, D. P., “From International Sanitary Conventions to Global Health Security,” Journal of Law, Medicine & Ethics, 2005).

CASE STATUS AND LEGAL PROCEEDINGS

The pandemic treaty negotiations are ongoing. The WHO Intergovernmental Negotiating Body (INB) is expected to present a final draft to the World Health Assembly in 2025. The Biden administration has participated in these negotiations, emphasizing transparency and national interests.

In the United States, any international treaty must be ratified by a two-thirds majority in the Senate under Article II, Section 2 of the Constitution. This high threshold has led to skepticism over whether any such treaty would survive a politically divided Senate.

Republican lawmakers have introduced several resolutions opposing the treaty. One such resolution, introduced by Senator Ron Johnson (R-WI), asserts that *”the WHO has no authority to impose public health mandates on the United States without explicit Congressional approval.”

While no legal challenges have yet reached the courts, constitutional scholars anticipate that litigation could arise if the treaty is ratified and enforced in a way that impacts domestic law. Potential challenges may involve First Amendment rights (e.g., freedom of expression concerning health misinformation), Fourth Amendment rights (e.g., mandatory testing or quarantines), and Tenth Amendment federalism principles.

“If the WHO treaty is interpreted to mandate lockdowns or vaccination policies that override state laws, expect a federalism clash akin to the Affordable Care Act litigation,” predicts Ilya Shapiro, Senior Fellow at the Manhattan Institute.

VIEWPOINTS AND COMMENTARY

Progressive / Liberal Perspectives

Progressives generally support the WHO’s efforts to streamline global health responses, citing equity, science-based decision-making, and international solidarity.

“The COVID-19 pandemic taught us that no nation can go it alone. We need a rules-based system that ensures cooperation and equitable access to health resources,” argues Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases.

Liberal legal scholars emphasize that treaty obligations do not inherently override constitutional rights and that safeguards can be built into implementing legislation.

“Treaties must be interpreted and enforced in a manner consistent with the U.S. Constitution. That includes judicial review and Congressional oversight,” notes Harold Koh, Sterling Professor of International Law at Yale Law School.

Civil rights groups such as the ACLU have cautiously endorsed international health coordination, provided that due process and civil liberties are preserved. They advocate for transparency in WHO governance and democratic participation in treaty ratification.

Progressive think tanks like the Brookings Institution have also highlighted the importance of equitable vaccine access and the need to counter global health disparities. They argue that the treaty could reduce geopolitical tensions and ensure preparedness against future pandemics.

Conservative / Right-Leaning Perspectives

Conservatives are more skeptical, viewing the WHO’s treaty as an affront to national sovereignty and an encroachment on individual liberties.

“We should not outsource American public health policy to unelected international bureaucrats,” declares Senator Tom Cotton (R-AR).

Conservative legal scholars warn of the slippery slope inherent in binding international agreements. “What begins as guidance can quickly evolve into mandates, especially under emergency powers provisions,” says Robert Alt, President of the Buckeye Institute.

Organizations like the Heritage Foundation have published reports criticizing the treaty’s potential to override national vaccine policies, enforce digital health passes, or censor dissenting health information.

“The WHO’s record during COVID-19—including its deference to China—raises legitimate concerns about transparency and accountability,” argues Brett Schaefer, Senior Research Fellow at Heritage.

Originalist jurists also stress the Tenth Amendment, arguing that public health is traditionally a state responsibility. Any treaty that infringes on this domain could invite constitutional litigation.

COMPARABLE OR HISTORICAL CASES

A pertinent parallel is the International Covenant on Civil and Political Rights (ICCPR), ratified by the U.S. in 1992 with numerous reservations to preserve domestic sovereignty. Despite being a binding treaty, its enforcement mechanisms were significantly curtailed in the U.S. legal system.

Similarly, the Kyoto Protocol on climate change was signed but never ratified by the U.S. Senate, reflecting a reluctance to cede authority to international organizations.

Supreme Court jurisprudence in Medellín v. Texas (2008) is especially relevant. In that case, the Court ruled that a decision by the International Court of Justice was not binding federal law absent implementing legislation (552 U.S. 491). The majority opinion, authored by Chief Justice Roberts, reaffirmed the principle that *”not all international law obligations automatically constitute binding domestic law.”

“Medellín underscores that treaties must be domestically enacted to carry legal force in the U.S., a principle likely to constrain any overreach by the WHO treaty,” explains Erwin Chemerinsky, Dean of Berkeley Law School.

POLICY IMPLICATIONS AND FORECASTING

Should the WHO treaty be ratified, several implications follow:

1. Federal-State Conflicts: States may resist implementing WHO policies, particularly conservative-led jurisdictions, leading to legal showdowns over preemption and federalism.
   
2. Public Mistrust: Given the post-COVID polarization, any international mandate perceived as coercive may deepen public mistrust in institutions.
   
3. Legislative Reforms: Congress may pass enabling statutes with strict constitutional guardrails to preserve liberties while complying with the treaty.
   
4. Global Leadership: U.S. participation could reaffirm its global leadership role, especially in countering Chinese influence within WHO structures.
   

“If the U.S. walks away from global health governance, others will fill the void—often in ways that don’t align with democratic values,” cautions Thomas Bollyky, Director of Global Health at the Council on Foreign Relations.

Think tanks such as the Cato Institute have urged policymakers to focus on domestic capacity-building rather than international dependencies, whereas the Brennan Center recommends enhancing treaty transparency and embedding human rights safeguards.

CONCLUSION

The WHO’s prospective authority during a Disease X-type pandemic raises pivotal constitutional and policy dilemmas. On one hand, global coordination is essential to contain cross-border health threats. On the other, international mandates must not erode constitutional protections or democratic governance.

Both sides of the political spectrum acknowledge the need for reform but diverge sharply on how much power should be centralized in Geneva. The path forward requires balancing national sovereignty with international solidarity.

“The true test of any legal framework is not how it operates in calm but how it functions in crisis,” reflects Noah Feldman, Professor at Harvard Law School.

As lawmakers debate the merits of the WHO treaty, a fundamental question looms: Can democratic nations safeguard both public health and individual liberty in the age of global pandemics?

For Further Reading

1. The global governance of pandemics
2. Disease X and COVID-19: turning lessons from India and the world into policy recommendations
3. Pandemic prevention, preparedness and response accord
4. Law, ethics and pandemic preparedness: the importance of cross‐jurisdictional and cross‐cultural perspectives
5. Ethical issues in outbreaks and emergencies