Ziad Al Atiyah

 PhD candidate in international law , University of Malaga, Spain.

Introduction

The World Health Organisation (WHO) has been caught in the middle of an unexpected fracas due to the COVID-19 crisis and its virulent and rapid spread throughout the world. It has been accused of failure, politicization, disinformation, and of being complacent with actors who could be held responsible for the outbreak. Also, it has been drawn in a verbal feud. Thus, the capacity of the organization to deal with the pandemic has become controversial. This has come about because of the growing view that WHO’s management of COVID-19 and its actions or omissions did not effectively prevent or stop the spread of the disease. This begs the question whether the organization had the competence and the mandate to have intervened earlier to stop the spread of the disease. This post attempts to explore if WHO had an adequate regime of compliance that enabled the organisation to assess and detect diseases in their early stages before becoming an international public health risk.   

The WHO legal regime

In the law of WHO, neither the Constitution nor the International Health Regulations (the Regulations) mention the concept of compliance. Nevertheless, the Regulations are lex specialis that govern the objective to control and prevent the spread of diseases. Part II of the Regulations                                 “Information and Public Health Response” contains what can be considered the compliance regime of the WHO. This regime consists of four mechanisms as follows:

  1. Surveillance (Article 5): State Parties must have the capacity to detect, assess, notify and report events according to Annex 1 of the Regulations. The Annex details the core capacity requirements for surveillance and response. The WHO has the right to collect information regarding events through its surveillance activities and assess their potential to cause international disease spread and possible interference with international traffic.
  • Notification (Article 6): includes a set of obligations that State Parties must comply with in the case of events that may constitute a public health emergency of international concern. These obligations include:

– assessing events occurring within its territory by using the decision instrument in Annexe 2 of the Regulations. The decision instrument contains criteria by which the State Party can judge the state of public health in its territory.              

– notifying WHO by the most efficient means of communication available within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory, as well as any health measures implemented in response to those events.

– continuing to communicate to WHO with accurate and sufficiently detailed public health information about the notified event, where possible including case definitions, laboratory results, sources and types of risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the public health emergency of international concern. Furthermore, the mechanism of notification applies, in accordance with Article 7, if a State Party has evidence of an unexpected or unusual public health event within its territory, it must notify WHO according to the notification mechanism mentioned in Article 6 above.

  • Consultation (Article 8): when State Parties do not have sufficient information to determine if an event occurring in its territory could meet the conditions listed in the notification mechanism (Article 6), they must advise and consult with WHO on appropriate health measures. Then, the State Party may request WHO assistance to assess any epidemiological evidence they have obtained.
  • Verification (Article 9 and 10): one of the main innovative features of the 2005 Regulations which gives WHO the right to receive reports from sources other than State Parties, NGOs and the like. The WHO has the duty to assess these reports according to established epidemiological principles and then communicate information about the event to the State Party in whose territory the event is allegedly occurring. Before taking any action, WHO consults with and attempts to obtain verification from the State Party in whose territory the event is allegedly occurring. This procedure triggers the obligation of the State Party concerned to verify and provide, within 24 hours, available public health information on the status of events referred to in WHO’s request. This verification mechanism entails that in case of a public health emergency of international concern, the WHO will collaborate with the State Party concerned to assess the potential for international disease spread, possible interference with international traffic and the adequacy of control measures. If the State Party concerned does not accept the offer of collaboration that includes an on-site assessment with WHO, the latter then has the right, when justified by the magnitude of the public health risk, to share the information available with other States Parties. Also, this mechanism, following paragraph 2 of Article 9, obliges the State Parties to inform WHO within 24 hours of receipt of evidence of a public health risk identified outside their territory that may cause international disease spread.

The Regulations stipulate that it is WHO’s obligation to send all the information it receives to all State Parties as soon as possible, according to the four mechanisms above, to enable them to respond to a public health risk. However, paragraph 2 of Article 11[1] makes an exception to the provision of information received under Article 6 (of the notification mechanism) and Article 8 (of the consultation mechanism ) and paragraph 2 of Article 9[2] for verification, assessment and assistance purposes, unless otherwise agreed with the State Parties concerned. However, WHO ought not to disclose this information until the event in question leads to a public health emergency of international concern or the State Party concerned is unable to control the spread of disease. Such mechanisms are devised to permit WHO to evaluate the state of public health around the world and can ring the warning bell whenever a public health emergency arises. Article 12 confers on the Director-General, the obligation to determine and declare, after consulting the Emergency Committee, if an event in a State Party meets the criteria of being a public health emergency of international concern.

Compliance and accountability

Having illustrated that, the issue of compliance regime in the implementation of the Regulations did not attract enough attention. The existing regime depends  on the procedure of self-reporting from State Parties to realise the objective of preventing the spread of diseases. Moreover, the obligation to assess and detect diseases rests on the shoulders of State Parties, except in the mechanism of surveillance where WHO must assess, through its information gathering, events from State Parties that could potentially lead to the international spread of disease and possible interference with international traffic. However, this mechanism of surveillance would trigger the mechanism of notification insofar as it meets the threshold of Article 6 (of the notification mechanism). Nevertheless, State Parties are obligated to notify WHO about any event that may constitute a health emergency of international concern and consult with it about even events in their territories that don’t require notification. Therefore, the three mechanisms of surveillance, consultation and notification oblige State Parties to self-report according to designated guidelines and reporting formats. Surveillance and verification are there to spot instances of non-compliance with the mechanisms of consultation and notification, but they aren’t designed as non-compliance procedures because they are not connected to measures of response to non-compliance. They are there merely to permit WHO, according to Article 12, to determine the situation as a public health emergency of international concern after consultation with the State Party concerned, the Director-General and the Emergency Committee. This means that none of the mechanisms has a non-compliance procedure, only the technical capacity to assess and detect diseases that may constitute a public health emergency of international concern according to the information received from States Parties. Even the mechanism of verification, which is the most significant innovation of the 2005 Regulations, relies on the feedback of the State Party concerned without conferring the competence on WHO to conduct an on-site assessment  unless the State Party gives consent. Therefore, there is no other level of action or measure that can be taken if a State Party rejects an  on-site assessment . Additionally, WHO lacks having third-party verification or monitoring that can verify the accuracy of information provided by the State Party concerned. It also lacks a body or committee to tackle any instance of non-compliance or referral to the Executive Board or the Assembly. Even the Emergency Committee is under the management of the Director-General and works as a department of the Secretariat; it is a Committee of convenience that has no role in compliance. The Secretariat has the responsibility to intervene when any event may constitute a public health emergency of international concern without having the competence to verify, assess and detect events independently from States Parties. Nevertheless, neither the Executive Board nor the World Health Assembly has convened an emergency session to deliberate the most devastating event of public health of international concern in the history of WHO. Yet, one of the Executive Board’s functions, in accordance with paragraph (i) of Article 28 of the Constitution, is ‘to take emergency measures within the functions and financial resources of the organisation to deal with events requiring immediate action. In particular, it may authorise the Director-General to take the necessary steps to combat epidemics…’.

Conclusion

            The WHO falls far behind other international instruments that are equipped with compliance mechanisms that have procedures to look into instances and responses to non-compliance, namely, the Multilateral Environmental Agreements. It’s ironic to note that the majority of States Parties are also parties to these Agreements.  The whole issue of compliance was not envisaged by those who drafted the Regulations. WHO is not able to assess, detect or intervene to prevent the spread of a disease as it has no competencies to investigate and asses the alleged event of public health risk on-site and independently from the State Party concerned. The centrality of the self-reporting procedure needs to be supported by third-party verification and monitoring. The current regime would allow a negligent or incapable State Party to escape the responsibility just by notifying the WHO of an event of public health emergency of international concern in late stages of its spread and, by doing so, fulfilling its obligations under the Regulations.  Regardless of the allegations and the claims surrounding the spread of COVID-19 in every corner of the world, the crisis manifests the urgent need to revisit the whole system of WHO to be responsive to the challenges of a pandemic outbreak and have its management under scrutiny. In short, adopting an effective compliance regime would be less expensive than the destructive effects that are humanly, socially, and economically inflicted on the world by COVID-19.

The views expressed in this post are solely those of the author. They do not necessarily reflect the views of any institution with which he is affiliated.

[1] “WHO shall use information received under Articles 6 and 8 and paragraph 2 of Article 9 for verification, assessment and assistance purposes under these Regulations and, unless otherwise agreed with the States Parties referred to in those provisions, shall not make this information generally available to other States Parties, until such time as: (a) the event is determined to constitute a public health emergency of international concern in accordance with Article 12; or (b) information evidencing the international spread of the infection or contamination has been confirmed by WHO in accordance with established epidemiological principles; or  (c) there is evidence that: (i) control measures against the international spread are unlikely to succeed because of the nature of the contamination, disease agent, vector or reservoir; or (ii) the State Party lacks sufficient operational capacity to carry out necessary measures to prevent further spread of disease; or (d) the nature and scope of the international movement of travellers, baggage, cargo, containers, conveyances, goods or postal parcels that may be affected by the infection or contamination requires the immediate application of international control measures.”

[2] “States Parties shall, as far as practicable, inform WHO within 24 hours of receipt of evidence of a public health risk identified outside their territory that may cause international disease spread, as manifested by exported or imported: (a) human cases; (b) vectors which carry infection or contamination; or (c) goods that are contaminated.”