Monday, May 23, 2022
Kevin A. Klock (Georgetown University), The Soft Law Alternative to the WHO’s Treaty Powers, 44 Geo. J. Int’l Law (2013):
As a recent decision of the World Health Assembly makes clear, many in the global health movement advocate mobilizing the World Health Organization's (WHO) treaty-making powers to address the world's great health challenges. The hard lawmaking power granted to the WHO in the 1940s was unprecedented, but is antiquated now given contemporary international relations and global health concerns. This Note argues that the WHO can better facilitate the development of global health ‘law’ by promulgating soft law instruments containing specific, concrete provisions. These mechanisms are different from treaties because the instruments are soft, but distinguished from ‘mere declarations' because their contents are hard. Practitioners in other fields have deployed such instruments effectively when (1) sovereignty costs are intractable and yet normative experimentation is needed, (2) agreements are meant to coordinate rather than constrain, perhaps through a centralizing international institution, (3) non-state actor participation is essential, and (4) agreements will require constant updating to keep current with substantive developments in the subject matter. Finally, durable soft law provisions may harden into binding customary international law, thus achieving the status so desired by hard law enthusiasts. Consequently, this form of soft law instrument provides a useful and modem means to craft agreements that, while not binding legally, may have relatively more power to affect conduct and help achieve global health's social justice ends.