The 2005 Memorandum of Understanding (MOU) between the WHO and the People's Republic of China was signed for the purpose of allowing official communications between the WHO and Taiwan. This MOU was, however, kept secret until only recently, when McKee and Atun published their study in The Lancet.
From a legal perspective, many believe that the WHO does have the right to enter into such an agreement with Chinese Government, as a necessary action to promote the WHO's founding objectives. To establish that the MOU does, in fact, support the WHO's founding objectives, it is necessary to reflect on the agency's Constitution and related conventions, including the International Health Regulations (IHR).
According to McKee, the MOU provides that all contacts between the WHO and the "Taiwanese authorities" need to be cleared with the Chinese delegation in Geneva, via an appointed liaison agency, no less than five weeks before actual contact takes place. Chinese authorities will decide which Taiwanese individuals will be contacted. Such an arrangement is inefficient and inconsistent with Article 2 of the IHR, which entitles the WHO to communicate directly with the health administration of the Member State, instead of going through diplomatic channels. Lots of things under the WHO's purview cannot be predicted five weeks in advance. The spread of communicable diseases, for example, may be impossible to foresee, and require immediate communication between Taiwan's health minister and the WHO.
The MOU stipulates that the Chinese shall choose who or what the WHO will speak to on the Taiwanese side. This is also inappropriate: Since the Chinese government doesn't even recognize the Taiwan government, it defies reason that it will appoint somebody or some agency from Taiwan's health administration to be the contact point. Even if the Chinese government wishes to do so, Taiwanese officials will feel extremely reluctant to comply with a Chinese dictate.
Articles 8 and 41 of the WHO Constitution offer the possibility for national organizations, governmental or non-governmental, to be represented at all relevant conferences of the Organization. The intention is to facilitate group as opposed to individual representation. It is up to the independent Taiwanese public health administration to implement whatever is adopted by the WHO, but the MOU only allows Taiwanese individuals to have contact with the WHO. As a democracy, Taiwan's legislative body will not endorse any negotiations between the WHO and a Taiwanese individual without prior authorization.
According to McKee, the MOU stipulates that Taiwanese citizens will not be invited to join expert advisory panels of the WHO. And the WHO is required to exclude any Taiwanese citizens inadvertently included within NGO delegations attending WHO meetings.
Direct contacts between the WHO and Taiwan are only possible when an emergency occurs, as designated by the WHO Director General, provided Chinese authorities agree with such contact. The exclusion of Taiwanese experts from WHO expert advisory panels cannot be based on technical or professional grounds, given the achievements of Taiwan's public health authority. Such exclusion prevents the WHO from incorporating useful expert input into its decision making.
Further, excluding Taiwanese citizens from NGO-WHO meetings is totally contrary to the rationale behind having NGO representation in the first place -- NGO representation is supposed to provide the WHO with a variety of different perspectives.
The MOU arrangement shows that China's public health administration does not tolerate different voices from civil society. The most recently revised IHR Articles 9 and 10 require a different and much open attitude from the WHO in terms of verification of NGO participation and government notification. Such an open attitude is an anathema to the spirit of the MOU.
China's power to veto emergency contact between the WHO and Taiwanese officials is contrary to Article 1 of the WHO Constitution. If this provision cannot be modified, then the Chinese government shall announce publicly that it will never exercise any veto power in such situations.
The MOU puts effective public health considerations aside and fails to serve the WHO's basic objectives. It does not remedy any loophole in the global surveillance system. It must be renegotiated with the full participation of the Taiwanese government.
Michael Gau is an associate professor of International Law at Soochow University.
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