The COVID-19 pandemic has exposed the underlying public health risks of an interconnected and globalised world. Although vaccination programmes have begun in prosperous parts of the world, they do not guarantee immunity from future pandemics. The outbreak of COVID-19 has also revealed the limitations of the World Health Organisation (WHO) and the International Health Regulations (IHR). In such unprecedented times, with the role of the WHO coming into question, a review committee has been formed to assess the implementation of the IHR during the ongoing pandemic.
The origin of IHR can be traced back to the International Sanitary Convention which was formed to combat European cholera outbreaks during the 1850s. Its current version was adopted after major revisions were necessitated by the outbreak of Severe Acute Respiratory Syndrome (SARS) in 2002. IHR is a binding instrument of international law that requires its members to report any disease outbreaks and prepare for public health threats, as per the standards set by the WHO. The primary purpose of the IHR is to “prevent, protect against control and provide a public health response to the international spread of disease” in a manner that avoids “unnecessary interference with international traffic and trade”.
It is argued that by the time that the WHO acknowledged that travel restrictions might be of some value in order to address the pandemic, the window of opportunity to control the spread of COVID-19 had long expired. The WHO has maintained that for this kind of virus there is no adequate scientific evidence to substantiate the effectiveness of travel restrictions, and, instead, these bans can cause greater harm than good.
That being said, dozens of states went ahead with travel restrictions and closed their borders for international arrivals. Prime Minister Scott Morrison contended that Australia was in a relatively better position than other countries because it did not rely on the WHO’s early advice against travel bans.
Though the efficiency of travel restrictions is still being debated, the non-compliance of states with certain provisions of the IHR are as clear as daylight. For instance, according to Article 43.3, states are required to notify the WHO of their rationale for additional health measures like “significant interference with international traffic”. The failure of at least two-thirds of countries to do so has been deemed “illegal” by 16 global health law scholars in The Lancet. They further claim that such decisions taken by states not only left the WHO in the dark but also compromised its ability to coordinate the global response against COVID-19. In the long run, such blatant disregard prevents countries from holding each other accountable for their obligations to the provisions of IHR in the future.
The absence of dispute resolution and enforcement mechanisms is why states need to hold each other accountable through means of peer pressure. This impediment was noted by the review committee formed after the H1N1 pandemic which stated that “the most important structural shortcoming of the IHR is the lack of enforceable sanctions”. Non-compliance is an inherent challenge for international law and without enforcement mechanisms, IHR lacks power. As Gian Luca Burci, the WHO’s former legal counsel said, “The WHO isn’t Nato, it’s not the Security Council”.
The question that then arises is whether the WHO should have powers like the United Nations Security Council (UNSC), considering the grave socio-economic consequences that the world can, and has, suffered due to the advent of the current pandemic? The review committee formed post-Ebola was of the opinion that linking the legal framework of the World Trade Organisation (WTO) and IHR should be explored in cases of non-compliance. The committee also recommended that there should be procedures in place to take matters to the UNSC in order to facilitate better dispute resolution and enforcement mechanisms.
Discussions on a higher degree of power for international institutions and regimes have attracted criticism by states, particularly because of its threat to their sovereignty. Another reason to be apprehensive of international institutions having greater powers could be attributed to the fear of these institutions becoming instruments of superpowers. It will be interesting to see if states will be more willing to cooperate with each other, at least in this sector, in the near future.
Whilst the IHR is binding on states in the globalised world today, it does not, however, bind non-state actors. Past review committees on IHR have pointed out that the WHO has failed to provide valuable information to non-state actors which, in turn, led them to make detrimental decisions, especially during the Ebola outbreak. The importance of enhanced cooperation with non-state actors within the backdrop of this pandemic is pivotal. Taking the case of travel restrictions, for example, when airline companies halted their operations in some countries it caused them to suffer a de facto travel ban even when other states did not impose it. Non-state actors have also taken the lead in the development of vaccinations. Hence their inclusion is vital for the prevention of such outbreaks in the future.
Meanwhile, the WHO has been accused by the likes of President Trump of a “Chinese coverup”, in reference to Taiwan’s advance warning of human-to-human transmission of COVID-19. Taiwan has also alleged that the WHO played down the severity of COVID-19, initially by endorsing China’s position that human-to-human transmission did not occur. This endorsement provided the world with a false sense of security while Taiwan was ramping up its efforts to combat the virus. Although Taiwan is not a member of the WHO, in hindsight its warning is one that should have been heeded. This strengthens the case for the inclusion of non-state actors in the framework of IHR.
One can speculate that the currently constituted review committee’s observations might be on similar lines to previous ones. As observed after the Ebola epidemic in West Africa, it took over two months for the government of Guinea to notify the WHO about the symptoms exhibited by the first patient, and four more months before the WHO announced the outbreak. In the case of the COVID-19 pandemic, Taiwan informed the WHO about its concerns on 31 December 2019 with the WHO acknowledging that there might be evidence of human-to-human transmission in Wuhan, China on 22 January 2020.
This apprehension to share information could be attributed to the experience with regards to SARS and H1N1 outbreaks during which time countries that were not affected imposed travel and trade restrictions on those infected. Such decisions adversely affect regional economies and were also in contradiction to the provisions in IHR.
The IHR is legally binding on 196 states but it is not taken seriously due to the lack of enforcement mechanisms to ensure compliance. Hence, global governance in the future should focus on improving transparency between states and international organisations. Sharing of data and significant investments in surveillance technologies might become the new normal. One thing is certain: the WHO needs to take a proactive and precautionary role rather than a reactionary one. This, however, will only be possible if states are willing to cooperate. The end of World War II witnessed the emergence of the United Nations and a significant shift in the role of international organisations, which has prevented another World War from breaking out. Will we witness the same after the end of this health war, if there is an end at all? Only time will tell.