Gaëlle Foucault
Jean-Louis Denis
Julie Nicolas
Miriam Cohen
With U.S. President Donald Trump announcing that the United States will withdraw from the World Health Organization (WHO) on the very day he takes office - January 20, 20251 - it seems ever more urgent to study this organization, whose future is threatened by the departure of one of its biggest financial contributors2. Created in 1946, this post-World War II international organization remains of international public utility as long as its ambitious goal of “the attainment by all peoples of the highest possible level of health”3 remains unfulfilled. The WHO will have to weather this new institutional crisis, which “risks undermining decades of progress”4. It is in this uncertain climate for multilateralism and international institutions that the results of the international research project on the role of WHO normative leadership (2019-2024) are presented. In such a context, this type of evidence-based research becomes more relevant than ever in thinking about WHO’s future.
The aim of this ambitious research project was to analyze the WHO’s normative leadership, i.e. the organization’s ability to influence the behavior of its Member states through the norms (conventions, regulations, policies, opinions, etc.) it adopts5, an issue that is difficult to grasp empirically. The project was led by an interdisciplinary team from the Université de Montréal, made up of professors Catherine Régis (principal researcher), Miriam Cohen, Jean-Louis Denis and Pierre Larouche, accompanied by a PhD candidate, Gaëlle Foucault (scientific coordinator). The project also benefited from the expertise and collaboration of international researchers, namely Katherine Ginsbach, Florian Kastler, Hugo Muñoz Ureña, Sandra Hotz, Pamela Laufer-Ukeles, Mélanie Lévy, Matheus Rodrigues Silva De Castro, Jeanne Snelling and Paula Wojcikiewicz Almeida. This research was also made possible thanks to the invaluable work of two post-doctoral researchers and numerous students hired as auxiliaries and research assistants, who worked in six languages to complete the work6. The project was funded by the Social Sciences and Humanities Research Council (SSHRC), the Stellari Funds, the Canada Research Chair in Health Law and Policy and the H-Pod.
This research is intended to address a knowledge gap concerning the fate of the norms produced by the WHO and the process by which they are incorporated into domestic law, and has three main objectives:
1) To assess, quantitatively and qualitatively, the incorporation of WHO norms into domestic law;
2) To develop theoretical tools to contribute to discussions on the normative role of international organizations, particularly towards the WHO and ;
3) To formulate recommendations based on the data collected for the attention of the WHO, public decision-makers and legal actors such as the judicial community with a view to promoting, on the one hand, a better understanding of the role of WHO norms in domestic law and, on the other hand, the development of effective international norms-setting strategies for global health governance.
Some of the data collected and the resulting analyses were transcribed in a report recently published (see: https://www.h-pod.ca/actualite/le-leadership-normatif-de-lorganisation-mondiale-de-la-sante-une-analyse-quantitative-rapport). More specifically, this report describes one of the two empirical phases developed as part of this project, namely the inventory of references to the WHO in domestic law7. It highlights the quantitative analyses based on part of the data collected in the eight countries studied: Brazil, Canada, Costa Rica, France, Israel, New Zealand, Switzerland and the United States. Presented in graphical form, the data has been enhanced by contextualizing it (recalling the legal, political, historical and health characteristics of the eight countries) and comparing it with the expertise of researchers specializing in national law in each of the countries.
Based on this improved data, a number of findings emerged:
1) A clearer understanding of the term ‘normative’. The data highlighted the fact that this term cannot be associated solely with ‘classic’ legal instruments with a traditional ‘formal envelope’. On the contrary, the WHO’s normative output covers a wide range of contents and documents, with a gradual degree of normativity, and within which soft law plays a significant role (in particular the International Classification of Diseases (ICD) and the Covid-19 Pandemic Declaration).
2) The WHO's scientific expertise is highlighted. The major use of WHO norms of a scientific or technical nature (ICD, International Nonproprietary Name) suggests that this attribute is an asset in the use of WHO norms in domestic law.
3) The multidimensional nature of health is affirmed. While the multiple dimensions (physical, mental, psychosocial, environmental, etc.) and determinants (social, economic, individual, physical, etc.) of health promoted by the WHO are apparent in the definition provided by its Constitution8, they are also apparent in the regulations and court decisions analyzed, given the diversity of the ministries responsible for adopting the acts referring to the WHO and the variety of courts citing the WHO.
4) Health crises as a factor in the use of WHO norms. Although periods of crisis are not the only factor in the use of WHO norms by national authorities, the data show a certain correlation between health crises and the increase in references to WHO norms.
5) The influence of certain institutional characteristics on the WHO’s normative leadership. The data suggest that the distribution of competences between the federal and sub-federal levels in health matters, as well as the existence of a presidential system in the countries studied, exert an influence on the use of WHO norms at the national level. For example, given the important regulatory role of the President in presidential regimes, he becomes a key interlocutor for the WHO in disseminating its norms by relying on them in the regulations he adopts. However, the analysis did not reveal any clear distinction between monist and dualist countries, or between countries with a civil law tradition and common law countries.
6) The influence of certain contextual characteristics on the WHO’s normative leadership. Over and above institutional characteristics, certain contextual characteristics in the countries considered seemed to be favorable to the use of WHO norms in domestic law, namely demographics, the ‘openness’ of governments in power9 and proximity to cutting-edge medical research.
7) The marked importance of the judiciary in the dissemination of WHO norms in domestic law. The data bear witness to the horizontal effect of WHO norms, particularly as they are used before national courts in disputes between private parties. This primacy of case law over laws and regulations may, however, be put into perspective in view of the way laws and regulations are drafted in some countries (e.g. lack of preambles and failure to take account of preparatory work).
On the basis of these various findings, the research team has formulated a number of recommendations for the WHO to support its normative leadership.
1) The WHO should further enrich and diversify its relations with its partners and stakeholders. The WHO could adopt a more open and curious approach, rather than confining itself to the usual state representatives (the federal government and the Ministry of Health). In fact, it would benefit from diversifying its interlocutors and interacting with a greater number of people concerned by the WHO’s global health mandate. For example, the WHO could develop its relations with other ministries (in particular the Ministry of Finance and the Ministry of the Environment) which also rely on WHO norms, as the report has shown. With regard to the use of WHO norms by the legal community as evidenced by our data, it would seem appropriate for this organization to develop tools to inform the legal community about its activity and the norms it develops. Finally, it would be beneficial for it to establish direct links with non-state actors, such as civil society and academia. Despite the WHO’s efforts in this direction, they need to be better structured to respond to the request from non-governmental organizations identified during phase 3 of the research (not covered by the report) to establish closer contacts with the WHO.
2) The WHO should deepen and consolidate its relationships with solid and trusted partners in the field of research. These partners should be called upon more by the WHO to help translate the scientific content they produce into relevant normative research. In this respect, the WHO could, for example, encourage its collaborating centers to pay more attention to normative issues, but also encourage national researchers and other research partners to integrate normative issues into their activities. Finally, the establishment of direct collaboration between the WHO and national researchers involved in the development of state policies would be an asset in addressing concerns about the WHO’s normative impact. Plunged into a complex context, due to the ecosystem in which it operates (diversity of actors and issues in global health) and its intrinsic limitations (lack of financial and human resources), but also turbulent due to the crisis of mistrust experienced by international institutions, the WHO is called upon to reaffirm its raison d’être and rethink its impact. As demonstrated in our work, research is an important means of helping it to achieve this objective.
To access the full report : Le leadership normatif de l'Organisation mondiale de la Santé : une analyse quantitative (rapport) / The Normative Leadership of the World Health Organization : A quantitative analysis (rapport).
1 United States, « Withdrawing the United States from the World Health Organization » (executive order), 20 January 2025, https://www.whitehouse.gov/presidential-actions/2025/01/withdrawing-the-united-states-from-the-worldhealth-organization/.
2 Argentine President Javier Milei is following the same trajectory and has announced his intention to leave the WHO. See in particular: Le Monde, “L'Argentine annonce se retirer de l'OMS, jugée ‘néfaste’”, 5 February 2025, [online] https://www.lemonde.fr/en/international/article/2025/02/05/argentina-announces-exit-from-the-world-health-organization_6737828_4.html [consulted February 2025].
3 Constitution of the World Health Organization, 14 U.N.T.S. 185, July 22 1946 [1948], art. 1.
4 « Statement from the O’Neill Institute for National and Global Health Law on the United States’ Withdrawal from the World Health Organization », O’Neill Institute, 25 January 2025, https://oneill.law.georgetown.edu/press/statement-from-the-oneill-institute-for-national-and-global-health-law-on-the-united-states-withdrawal-from-the-world-health-organization/.
5 ASKIE, L. M., et al., « Establishing the impact of WHO’s normative and standard-setting functions: a call for papers », (2023) 101 Bulletin of the World Health Organization, p. 618.
6 We would like to express our sincere thanks to Stéphanie Cadeddu, Nathalie Voarino, Julie Nicolas, Thomas Grenier, Thibault Lepitre, Maelenn Corfmat, Nathan Detracey, Béatrice Joanis-Bergeron, Ido Alon, Shany Schvartz, Stanislas Boda and the research team at the Centre of Global Law (Fundação Getulio Vargas - Brazil).
7 On the various stages of the project, see the presentation on the H-pod website, available here: https://www.h-pod.ca/projet-oms. More specifically on the empirical analyses of the project, see: C. RÉGIS, G. FOUCAULT, P. LAROUCHE, J.-L. DENIS et M. COHEN, « The empirical apprehension of the normative leadership of an international organization: the example of the World Health Organization », (2024) 29-5 Lex Electronica, pp. 129-147.
8 According to the WHO Constitution, health is defined as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’. See: Constitution of the World Health Organization, supra note 3, preamble.
9 The term ‘openness’ is used here to highlight the tendencies and attitudes of the authorities to open up to the world, particularly in the development of the norms they adopt and in the interpretation of the norms they apply. This openness may be expressed through aspirations to comparative law (drawing inspiration from foreign legislation) and/or international law.
This content has been updated on 2 April 2025 at 13 h 44 min.
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