The WHO and SARS: The Challenge of Innovative Responses to Global Health Security - Innovation in Global Health Governance - page 68

disease eradication framework (wHo 1995b). the key factor was that the wHo
had been granted considerable discretionary capacity to experiment with developing
new policies and disease-eradication procedures at the time SarS was spreading
internationally. this is an important caveat that Fidler, cortell, and Peterson appear
to overlook in their criticisms of the wHo's actions, but one that is integral to
determining whether the organisation can be deemed to have engaged in independent
actions undesired by its member states.
Unauthorised, Unprecedented Actions
the constitution of the wHo is the single most important document for determining
the scope of the organisation's authority and power. throughout the 82 articles
comprising the wHo's constitutive treaty are a number of explicit rights,
responsibilities, duties, and functions that the organisation has been authorised by
its member states to perform. these capacities are commonly referred to as express
powers, which are those powers 'expressly granted by the constitution' (amerasinghe
2004, 100). Where expressly granted, these powers are classified as intra vires , or
within the scope and authority of the organisation concerned. Some of the more
prominent examples of the wHo's express ( intra vires ) powers include the wHa's
authority to adopt regulations pertaining to sanitary and quarantine measures (wHo
2006a, art. 21[a]), the director general's power to establish relations with other Ios
undertaking health-related activities congruent with the wHo's (art. 33), and the
executive board's authority to implement emergency measures when responding to
events such as epidemics (art. 28[i]).
like the constitutive treaties of many Ios, however, the wHo's constitution also
has a number of limitations. Specifically, by virtue of its nature, it sets out the object
and purpose of the organisation in very broad terms. Ascertaining the definitive
boundaries of the wHo's authority and the extent of the powers the organisation is
entitled to affect on a daily basis can therefore be a complex and, at times, problematic
exercise (Sands and Klein 2001, 445). one of the more serious implications of this
limitation is that the actions or decisions of an Io may occasionally be viewed as
unconstitutional and classified as ultra vires . the inevitable question that subsequently
arises then is who is authorised to interpret an Io's constitutive treaty.
It is now widely accepted in the international legal tradition that where no one
body has been explicitly named within an Io's constitutive treaty to interpret the
document, the organs of that particular organisation will provide the interpretation
in the first instance. 5 like any treaty concluded between governments, however,
the constitutive treaties of Ios are subject to a number of general rules of treaty
interpretation, including that the treaty is to be interpreted in good faith, that ordinary
meaning is to be ascribed to the text of the treaty, that the treaty should be interpreted
in its context and in the light of its object and purpose, that subsequent practice is
to be accepted as a form of interpretation and any subsequent agreements are to
be taken into consideration, and that the meaning of the treaty should not be left
ambiguous or unclear in any way (evans 2005, 130-136).