COVID-19 Symposium: “Can They Really Do That?” States’ Obligations Under the International Health Regulations in Light of COVID-19 (Part I)

COVID-19 Symposium: “Can They Really Do That?” States’ Obligations Under the International Health Regulations in Light of COVID-19 (Part I)

[Pedro A. Villarreal is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

In what is now an omnipresent claim, the coronavirus (SARS-CoV-2) pandemic currently rages throughout the globe. The epidemiological situation changes on a daily basis, often in dramatic fashion. Such fast-paced dynamism also encompasses the measures adopted by domestic authorities – for which there is a very useful tool here. It is appalling to see how the crisis has already shaken the deepest structures of society. As this symposium shows, the direct relevance of this event in such a highly heterogeneous set of legal fields is a sign of how multilayered the pandemic already is.

Thus, revisiting some basic elements of the specialized international law instrument for pandemic response – i.e. the World Health Organization (WHO)´s International Health Regulations (IHR)  – is worthwhile. In these two posts, I address the following questions: What are some of the core obligations under the IHR in light of the coronavirus pandemic? What could happen if the IHR´s norms are breached? And WHO (pun intended) can follow-up on these breaches of norms? This post certainly does not deal with all of the IHR´s obligations. It only touches upon a few issues that can lead to future analyses. In light of the ever-increasing number of online posts on this topic, a warning of inevitable overlap is warranted. Several of the following arguments are already introduced in a paper co-authored with Armin von Bogdandy.

The IHR: An Atypical Legal Instrument

The first peculiar feature of the IHR is its approval procedure. It is not a treaty. Instead, it is a legally binding instrument approved on the basis of Article 21 of the Constitution of the WHO – which, in turn, is a treaty. This provision allows the World Health Assembly, the WHO´s highest decision-making body, to issue binding regulations in the field of, inter alia, ‘…procedures designed to prevent the international spread of disease’. In 2005, just two years after the 2002-2003 debacle with Severe Acute Respiratory Syndrome (SARS-CoV-1), the World Health Assembly (composed of representatives from WHO Member States) voted to approve the IHR. Under Article 22 of the Constitution of the WHO, there is no ulterior national ratification procedure. As argued elsewhere, this notable delegation of lawmaking powers by Member States shows a foundational trust in the organization´s lawmaking powers.

As pointed out by others, the WHO has not made extensive use of the powers under Articles 21 and 22 of its Constitution. Since 1948, binding regulations have been issued only twice – namely, the IHR and the Regulations regarding nomenclature with respect to disease and causes of death. From a normative perspective, some see this as wasting the potential of international law for fostering global health. Others, instead, are more critical in so far as the existing legal regimes have fallen short of their promises. If so, why strain compliance even further? This is a debate far beyond the scope of this post. Suffice it to say, there is increasing recognition that the existing norms do not live up to their purpose and need an overhaul. 

States´ Obligations Under the IHR: “Hard-and-Fast”, “Protracted” and “Contingent”

A broad question related to public international law stands at the center of the ongoing coronavirus crisis: What are states´ legal obligations? A seemingly simple question leads to convoluted answers – because: lawyers. At the risk of oversimplification, I will try to divide some of the obligations by using three (very) informal terms to distinguish them: ‘hard-and-fast’, ‘protracted’ and ‘contingent’. A more doctrinally acceptable classification is left for another day. 

The IHR contains a series of ‘hard-and-fast’ obligations, i.e. those whose compliance can be attested in a practically immediate form. The obligation to notify the WHO under Article 6 IHR falls into this category. It is the cornerstone of the global disease surveillance system. It can also be seen, from a normative perspective, as justified. As the 2002-2003 SARS-CoV-1 crisis demonstrated, the consequences of unwariness can be catastrophic for the international community. The Chinese government´s delay in reporting the virus to the WHO in 2002 didn´t allow other states to prepare themselves. The reasoning hinges upon technical matters. In very oversimplified epidemiological terms – and risking scorn by medical experts – coronaviruses cause a ‘flu-like illness’, named COVID-19. Its symptoms sometimes resemble those of a seasonal flu. This, in turn, makes it difficult for states´ surveillance systems to initially identify infected persons. They can only do so once they know there is a new pathogen circulating. Otherwise, positive cases might be – and actually, were – diagnosed as flu cases or, in more severe instances, as “unexplained pneumonia”. Instead, being alerted to a new pathogen allows authorities to include new pathogens in epidemiological surveillance lists and change diagnosis guidelines. This procedure will be especially necessary in territories´ ‘points of entry’ (see Articles 19-22 IHR). Thus, Article 6 IHR obliges states to notify the WHO within 24 hours after they identify any event that ‘might constitute a public health emergency of international concern’. Mark Eccleston-Turner´s post in this symposium deals with this concept in greater detail.

As I argued previously here, without states´ disease reporting the WHO would be mostly ‘blind’. Domestic authorities are (usually) the best equipped to gather empirical epidemiological data. Still, an international organization capable of processing these reports without a national agenda, or at least not openly, can fulfill an essential technical role in the middle of an emergency. Let us imagine what would happen to global disease surveillance if the system depended on governments sharing their sensitive data directly with each other. If we multiply that times two hundred, the result would be a jigsaw of reports by states. Plus, any geopolitical hostilities could prove fatal for pandemic preparedness. Having a ‘neutral hub’ in the form of the WHO makes sense to avoid this.

‘Hard-and-fast’ obligations are also related to respecting travelers´ rights. Articles 31, 32, 40 and 42 IHR establish a series of limitations on how states can implement health measures in respect of persons entering their territory. Noteworthy is Article 42 IHR, mandating non-discriminatory treatment. The profiling of travelers in light of their personal features – and what this includes can be debated – would violate the IHR´s provisions. Such a violation could, in turn, be immediately ascertainable.

Other obligations of the IHR are ‘protracted’ in comparison. As analyzed here and here, Articles 5, 6, 13 IHR, with reference to its Annex 2, also contain capacity-building obligations. Certainly, in order for a state to promptly report, it needs a health system capable of doing so in the first place. Through the IHR, states have committed themselves to developing ‘core capacities’ within a certain period of time (five-plus-two-plus-two years, Articles 5, 13 and Annex 1 IHR). But how the minimum threshold for this capacity-building obligation can be measured is not clear-cut. Nor are the consequences for not meeting the initial deadline fully fleshed out. As measured by a so-called Joint External Evaluation Tool, compliance has increased gradually throughout the years. Still, in a world in which there are enormous contrasts between healthcare systems, uniform compliance with these ‘protracted’ obligations is a chimera.

Finally, there are obligations which can be seen as more ‘contingent’ in nature. They will be highly dependent on the circumstances. Due to the abstract formulation of some of the provisions of the IHR, they require a contextualized application to particular instances. Article 43 IHR, for example, allows states to take health measures additional to those recommended by the WHO, as long as they: 1) notify the WHO; and 2) provide a scientific basis. This can include measures against individuals, or even against states in general e.g. through travel bans. As mentioned above, the obligation to notify is ‘hard-and-fast’. Yet once this is effectuated, (non)compliance will depend on what justification states might provide.

The possibility for the WHO – and, in particular instances, its Director-General – to issue recommendations to states under Articles 15, 16 and 18 IHR is where it best exercises its technical authority. Similar to other parts of the IHR, Article 43 allows states to adopt additional health measures contingent on providing a scientific justification. Ignoring this obligation will be contingent on the prevailing circumstances. Indeed, depending on the type of emergency at hand, the best course of action will be different. Whereas one restriction might be recommended in some circumstances, it could be advised against in others. States may, indeed, offer scientific justifications countering the WHO´s recommendations. In fact, amidst the ongoing crisis there have been disagreements between public health experts on what the ‘best course of action’ is. Since this requires complex understandings of medicine and public health, expert input is necessary in order to provide more clarity. The WHO´s recommendations can reflect which measures should be taken during a specific crisis. It means, then, that the IHR´s general obligations can acquire more specificity. The WHO is in a privileged position to provide more guidance on what type of restrictions might be justified. Whether its assessments always provide full context is a different matter.

That being said, if states deviate from the WHO´s advice, are they failing to fulfill their obligations under the IHR? The (controversial) answer in my opinion is: it depends. Article 43 IHR as a whole is not ‘hard-and-fast’ in the sense that disregarding the WHO´s recommendations leads per se to a violation. This would require wholly re-framing them, starting with their name. They would no longer be ‘non-binding advice’ as Article 1 IHR defines them. Certainly, not following the Article 43 IHR steps of notifying-plus-justifying can be seen as a downright violation. For example, although the WHO stated on 30 January 2020 that travel bans (mostly to China) were “not recommended”, we nevertheless witness how states apply them increasingly. Is that in itself a breach of the IHR? The discussion is still open.

In the light of this overview of some of the IHR´s obligations for states, in the next post I will deal with other issues related to their implementation, namely: what happens if and when states deviate?

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