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

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

The WHO’s Oversight of the IHR’s Obligations – Still No Health Police

As explained in the previous post, the WHO cannot invoke legal responsibility when states breach the IHR. Reports of non-compliance have been presented at the World Health Assembly – without further action. No explicit mandate is granted by the IHR to the WHO to hold states responsible when the IHR is breached.

An example highlighting this gap is related to the legality of the ever-increasing ‘travel bans’. These would directly fall under the purview of the IHR. When the emergency was first declared, the major concern was how travel bans would isolate China, and mainly Hubei province where the virus first started spreading. Now, the bans go two-ways: persons are prevented both from entering a foreign country, as well as from leaving their own. Are they legally allowed to do so? As argued in my previous post in this symposium in light of Article 43 IHR: it depends.

Disregard for the WHO´s recommendation of 30 January, 2020 against travel bans seems to be widespread. The claim, posited by others, that all of these measures are a violation of the IHR certainly needs to be scrutinized further. To begin with, it places a lot of weight on non-binding recommendations. The implication would be that the WHO, and also its Director-General, would have the power to actually create motu proprio new obligations for states through her/his recommendations. This would represent a major delegation of powers.

Furthermore, the blatant lack of enforcement mechanisms for the WHO whenever the IHR are breached was an explicit choice of design. Ultimately, when approving the IHR, Member States did not see the need to turn an international organization into a health police. This means that comparisons with domestic authorities, which do exercise police powers in order to protect public health, are a stretch. Instead, attention should be focused more towards its allocated role as a technical agency.

No Individuals Here: “Classic” State-Centered Reparations

As mentioned previously here, a breach of the IHR would lead to international responsibility for wrongful acts. But, if not the WHO, then who (pun not intended) can invoke this responsibility? It is worth noting that, in terms of subjects of international law, the IHR is basically a state-centered instrument. Article 56 IHR allows states to enter into negotiations or mediation and, if this is unsuccessful, settle their disputes in the Permanent Court of Arbitration. This would allow states to seek redress whenever measures such as, for example, travel bans are taken by other states. Certainly, the act would first need to be attributable to state´s agents, so it would hardly be applicable in a setting where private companies adopt it as their own policy.

Since dispute settlement has – so far – never occurred, this is merely a hypothetical scenario. Nevertheless, further exploring the possibility can help understand the underlying rationale of the regime. The usual elements of state responsibility apply, which involve, inter alia, demonstrating causation. States could have standing in a judicial forum to file claims against actions or omissions by other states if their interests were damaged in some way. Here, a factual analysis of the effects of travel bans in other states´ economies – a concern which is also related to the WHO´s reasons for advising against travel restrictions – would be necessary. There is a potential way out of the initial hurdles for standing, though. The International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’) allow for states to invoke responsibility when, even if a particular action or omission did not affect them directly, ‘the obligation breached is owed to the international community as a whole’ (Article 48(1)(b) ARSIWA). But this requires a much more detailed justification.

The difficulties with causation also apply in the case of ‘hard-and-fast’ obligations, as classified in the first post. If we focus on Article 6 IHR´s obligation to notify, ascertaining a breach should be a relatively straightforward process: Either states report on time (24 hours), or they don’t. And if there are detrimental consequences in other states as a result of the delay, then redress could be sought. At this point, lawyering enters the stage: Demonstrating such a breach in a judicial forum also requires evidence. The 24-hour timeframe begins once ‘public health information’ has been assessed, e.g. once there is laboratory confirmation of the presence of a new virus. Thus, a subjective element is involved, in so far as it needs to be shown that authorities knew of the existence of an event for which they needed to notify the WHO. But if national authorities were themselves unaware of the presence of a threat, how could they be seen as obliged to notify? And, besides the possibility of whistleblowers stepping up or resorting to alternative, non-state reports (see Article 9 IHR), how can it be proven that national authorities were ‘aware’ of the presence of a potentially pandemic disease long before it was reported? Would journalistic accounts suffice?

In contrast to states, individuals simply do not have standing solely under the IHR. References to the human rights of persons and travelers are made, for example, in Articles 2 and 32 IHR. But the legal instrument does not envisage any recourse for individuals in case of wrongdoing by states. If travelers’ rights under the IHR are violated, it is actually up to their home states to bring a claim forward. In the past, and perhaps as a result of cost-benefit analyses, potential disputes between states arising out of treatment of travelers have been settled diplomatically.

Here, still two caveats can be put forward: the IHR can, in theory, be invoked by individuals in either (regional) human rights or domestic courts whenever they believe a breach has affected them. In the case of regional human rights courts, they could somehow make a cross-reference to the IHR´s obligations. And, depending on the legal system at hand, invoking the IHR at the domestic level is possible, though not taken for granted. Given how this encroaches upon the thematic contents of other posts in this symposium, I do not expand upon this possibility for the time being.

Deploying Legal Analysis in an Age of Pandemics

The analysis herein has probably not been a heartening one for international lawyers. After all, one of the purposes of having rules-based pandemic preparedness and response is to provide more certainty to norms’ addressees, both those who are obliged and those who are entitled to rights. Instead, so many caveats have been elaborated throughout these two posts, they would seem to lead to an increase in uncertainty. Conversely, I believe there is much value in trying to accurately depict the existing legal regime of pandemic response – including, of course, its existing pitfalls. Precisely due to law’s goal of providing certainty and stabilizing normative expectations, taking the many hidden corners into account is a must. Convoluted and cryptic as this exercise may be, it is our best chance at making the argument for a rules-based system. Because, in the middle of the unfolding COVID-19 drama, it is only natural to wonder where exactly legal norms are when you most need them.