Heath: Global Emergency Power in the Age of Ebola

J. Benton Heath (Curtis, Mallet-Prevost, Colt & Mosle LLP) has posted Global Emergency Power in the Age of Ebola (Harvard International Law Journal, forthcoming). Here's the abstract:

The gradual transfer of emergency power to the international level, as seen in the control of infectious disease outbreaks, creates new challenges for the legitimacy for global institutions. In particular, this Article contends, the expert nature of international bureaucracies fits awkwardly with the political decision-making required of crisis managers, often producing decisions that appear neither scientifically nor politically justifiable. Worse, the ordinary deliberative mechanisms for smoothing the interaction between expert knowledge and political decision often appear unavailable in the midst of a disaster.

The task for law and institutional design, then, is to develop tools for easing this interaction between expertise and decision-making, in ways that function even under the strain of crisis. This Article undertakes this challenge through an in-depth case study of the World Health Organization’s responses to Ebola and swine flu. After diagnosing the key problems facing the WHO and other global emergency governors, the Article elaborates three novel design principles for improving emergency decision-making: managed decentralization, epistemic openness, and forced dissent. This inquiry constitutes an initial step in what must be an ongoing project to redesign the institutions of global governance to capably and legitimately meet the challenges of crisis management beyond the state.