Vanchai Chaichuchanapai, Thammasat University Bangkok Thailand
As the COVID 19 pandemic continues to linger on, the leading international health instrument dedicated to coordinating an international response by states seems stuck in a politicised dilemma, caused by a hostile politicised climate and a regime with little oversight or recourse. This blogpost focuses on first pointing out the lack of oversight mechanisms in the International Health Regulations (IHR) of the World Health Organisation (WHO), before showing the need for either a review conference or a more favorable dispute settlement mechanism, to foster a more cooperative accountable environment to combat pandemics efficiently.
The 2005 International Health Regulations and the WHO limited power
The IHR was revised in 2005, in light of the 2002-2003 Severe Acute Respiratory Syndrome (SARS) epidemic, and the revision came into force in 2007. As the SARS epidemic was not covered under the scope of the previous version of the IHR, of 1969, the international community came together for a new instrument for coordinating responses to new international health concerns.
IHR constitutes ‘the key global instrument for protection against the international spread of disease’ as stipulated in its Preamble. Innovations were added into the 2005 revision, such as providing the World Health Organisation (WHO) the capabilities through its Director-General to declare a Public Health Emergency of International Concern (PHEIC), as provided in Article 12. The purpose of this provision was to inform the states of an ‘extraordinary event,’ as defined in Article 1 of the IHR, that ‘constitute a public health risk to other states through the international spread of disease and to potentially require a coordinated international response’. It was clear from the SARS epidemic that providing the WHO the authorisation to alert the international community of health crises with transboundary concerns was an important measure to contain the crisis. It allows the international community to take the initial steps in coordinating a global response against pandemics. However, such measure depend solely on states providing prompt and correct information on health crises that break out in their territories.
The WHO, as an organization, does not have the authority to gather information and data in each country. Instead, the responsibility to disclose information falls on states’ national authorities, as stipulated in Article 6 of the IHR. States are obligated to notify the WHO within twenty-four hours of ‘all events which may constitute a public health emergency of international concern within its territory’. In addition to Article 7 of the IHR, which requires states to ‘provide to WHO all relevant public health information’ of ‘unexpected or unusual public health event within its territory’ that could constitute an international public health crisis. Even though the IHR allows the WHO to take into account reports from sources other than states, as provided in Article 9(1) of the IHR, the WHO is still required to request verification from relevant state parties of those reports, as stipulated in Article 10 of the IHR. The only situations the WHO could overlook state parties are in cases of non-collaborations by the states, as provided in Article 10(4) of the IHR.
Hence, without states going through with their obligations in good faith and providing resourceful information, the body designed as a hub to foster cooperation in tackling international health crisis, would be practically almost ‘blind’. This is especially concerning in times with any geopolitical hostilities, as it could end up disastrous for international preparation for pandemics.
The main reason for this is WHO’s lack of enforcement mechanisms when states breach the IHR. Breaching the IHR does not lead to sanctions, in addition to WHO recommendations being non-binding, there are no correlated direct legal consequences for ignoring them. The only remedy for disputes, as provided in the IHR, is the dispute settlement mechanism provided in Article 56. When states have disputes, they may both agree to arbitrate, on the other hand, a dispute between the WHO and states are submitted to the Health Assembly. However, this provision has never been used.
As a result, the current regime to protect the international community from a global pandemic relies solely on states respecting what is obligated to them in good faith. Hence, problematic unresolvable disputes could arise when states accuse other states of not doing so.
The US against the WHO and China
A recent example that took a turn for the worse is the US-China situation with the WHO. The dispute developed to its peak when President Trump declared in a press conference that the United States would terminate its relationship with the WHO. The US government followed through starting the formal process of withdrawal by sending a letter officially notifying the United Nations. This occurs in light of the United States government freezing funding to the WHO, and threatening to do so permanently. The United States accused the Chinese government of not alerting the international community sooner, because of covering up the initial stages to the COVID 19 pandemic. President Trump also said that he does not believe the numbers reported to the WHO by the Chinese government regarding the COVID 19 pandemic. In addition, the Trump administration claims that the WHO is under China’s political influence, which resulted in its excessive trust in China’s initial stage information of the COVID 19 pandemic’s spread. This had raised political tensions between the two major powers even further, after recent ongoing trade wars, the failure of the G7 meeting over naming the virus, and the situation of ‘extended security power’ over Hong Kong. The United States reconsidering its membership to the WHO could result in catastrophe and undermine the purpose and scope of the IHR, by impairing the international effort in combating the COVID 19 pandemic.
A way forward
To address the lack of international oversight mechanisms, we could establish review conferences of states that are held regularly for the IHR, where states could meet regularly and hold reviews of each other periodically. This would help the international health regime in adapting to developments in global epidemiology, technology, science, and politics. The current regime does not provide for ways in which states could check and balance each other directly regularly.
Alternatively, we could set in stone better dispute settlement mechanisms that increase the involvement of professionals from various relevant fields, as technical issues related to PHEIC should be determined based on a practical standardized and agreed-upon science and epidemiology. In addition to setting clear procedures and timelines in resolving disputes through peaceful means, which would prevent the prolonging or the delaying of establishing arbitral tribunals. The current regime does not provide for either.
In conclusion, the global community must raise and address these identified gaps of the regime in upcoming World Health Assemblies, to achieve better frameworks in combating global pandemics.