By: Lauren Tonti
Containing a pandemic is a titanic task, requiring the cooperation of modern-day Titans. On March 11, 2020, the World Health Organization (“WHO”) declared a global pandemic of COVID-19, a respiratory disease spread by airborne pathogens from the coronavirus family. Infecting nearly 1,500,000 individuals across 184 countries as of April 9, 2020, and killing over 90,000 worldwide, COVID-19 has tested the tools of global health governance that are designed to protect populations. One such tool is the International Health Regulations (“IHR”). As a multinational agreement binding 196 Member States to monitor and report international health threats, the IHR seeks to coordinate a balanced public health response, while minimizing disruption to international travel and trade and upholding human rights. Mandating protocols to detect, assess, and report outbreaks, the IHR requires Member States to implement core capacities designed to equip national disease outbreak responses. Importantly, the IHR also gives the WHO’s Director-General the power to declare a public health emergency of international concern (“PHEIC”), which mobilizes coordinated international action. Indeed, states shoulder much of the responsibility to generate and report the public health metrics required to trigger any PHEIC notification. The IHR reflects an accumulation of the lessons that past pandemics have taught the global community. But as the world watches COVID-19 take its toll, the future of these regulations remains uncertain.
The IHR: An Instrument Informed by Past Pandemics
The present coronavirus is not the world’s first duel with a pandemic. The bubonic plague, a series of cholera outbreaks, and the Spanish flu are among the most notorious pandemics in recorded history. Each bout with pandemic illness has taught the international community hard-fought lessons that stakeholders used to adjust laws accordingly. Such lessons informed the evolution of this global health governance tool.
The 1892 International Sanitary Convention embodies some of the earliest concerted efforts of international powers to combat European cholera outbreaks under a unified framework. Furthering these principles, the International Sanitary Regulations were adopted by Member States of the newly-founded WHO in 1951, later revised and renamed as the International Health Regulations in 1969. The IHR of 1969 focused on six major diseases, including cholera, plague, yellow fever, smallpox, relapsing fever, and typhus. A series of illnesses across the globe prompted minor revisions throughout the subsequent decades before the AIDS epidemic and the SARS outbreak necessitated major revisions in 2005.
The 2005 revisions broadened the IHR’s scope beyond the six major diseases, aiming to encompass biological, chemical, and nuclear incidents, as well as zoonotic diseases and food safety concerns. The 2005 IHR revisions recommend best practices for international traffic at points of entry, reflecting modern globalized traffic and trade. The revisions increased the WHO’s investigational capacities and encouraged the observance of human rights in protecting public health. However, the latest round of revisions, which came into effect in 2007, failed to increase the instrument’s enforcement power. Current enforcement mechanisms rely on public shaming techniques that highlight damaged international reputations, increased national mortality, economic disruptions, and public outrage.
Since the revisions, the world has confronted Ebola, swine flu, and Zika virus. While a mix of hard and soft law direct health governance, the IHR is certainly one of the most multinational and tangible instruments available. At present, it has guided the global response to COVID-19.
At Present: IHR vs. COVID-19
As a fast-spreading, severe acute respiratory syndrome, COVID-19 matches the profile of notifiable diseases for which the IHR was designed. Yet, in response to COVID-19, there have been numerous violations of the IHR mandates, showing that the preventive mechanisms enshrined in IHR have failed—in large part due to national discretion.
Nations’ Lack of Core Capacities Hurt COVID-19 Response
Despite extended compliance deadlines, no WHO Member State is in complete compliance with the IHR’s core competencies. Europe achieved the highest level of compliance at 72% across all competencies, according to the WHO’s State Parties Self-Assessment Annual Reporting Tool (“SPAR”). Notably, however, the SPAR has been criticized for its lack of independent validation. National evaluation of compliance is also seen as inconsistent. Nonetheless, if these metrics are the “indisputable baseline[s] for preparedness,” Member States were at marked disadvantages from the outset of COVID-19. Whether because of inadequate funding, resources, or sheer lack of will, nations’ inhibited core capacities hurt the global COVID-19 response.
Member States Violated Key IHR Provisions
The COVID-19 epidemic bears witness to several direct IHR infractions, particularly Articles 6 and 7, governing reporting, and Article 43, regarding the implementation of protective measures.
While the IHR mandates national reporting and monitoring of notifiable disease outbreaks, China, a WHO Member State, was accused of censoring and withholding information at the outbreak’s outset, violating its duties in IHR Articles 6 and 7. Since the disease’s progression, reports have surfaced that China’s disease management tactics, such as censorship and mass quarantine, violate human rights, civil liberties, and IHR Article 3’s explicit call for respecting “dignity, human rights and fundamental freedoms of persons.”
In violation of IHR Article 43, which instructs disease management tactics to be grounded in available scientific evidence, numerous nations implemented travel bans barring travelers from endemic regions and closed national borders to non-citizens in the name of disease containment. Such tactics, which usually only yield benefits at the very preliminary stages of an outbreak, have proven detrimental to disease control efforts, especially as less restrictive yet similarly effective disease containment protocols were available. Moreover, in enacting such restrictions, nations disregarded guidance repeatedly issued by the WHO, yet another Article 43 violation.
While the IHR affords nations the prerogative to enact additional disease containment, Member States must report the extraordinary measures they have taken to the WHO. Perpetuating violations, only 32% of the 72 Member States implementing coronavirus travel restrictions reported these measures in a timely fashion to the WHO during the outbreak.
Unfortunately, the trends of forsaking WHO guidance while implementing additional bans that disrupted travel and trade are all repeat offenses, as the same types of infractions occurred during the Ebola and swine flu outbreaks. These infractions reflect a severe “crisis of confidence in the [International Health] Regulations.”
Political Pressures Pose Impediments
Political pressure appears to have impeded the IHR’s functionality. Critics argue that the WHO had sufficient evidence to declare COVID-19 a PHEIC as early as January 23, 2020, though the Director-General did not officially do so until a week later. Taiwan claims the WHO failed to act upon its officials reports to the WHO in December 2019 of human-to-human coronavirus transmission. Additionally, while the WHO stated that it is not in the business of shaming Member States for missteps, it has praised China for what many call draconian measures. Critics call such politically motivated support a “deception” that gave the global community “a false sense of assurance” about COVID-19’s manageability.
What Future for the IHR?
As COVID-19 continues to rage, the IHR’s future becomes less certain. As death counts surge, confidence in the IHR sinks. In the scrutiny likely to follow this pandemic, many will likely wonder whether the IHR adequately fit modern tendencies. This criticism will not be novel. Scholars predicted such difficulties.
Before COVID-19 struck, scholars called for revisions, as the Ebola outbreak alone revealed challenges for the IHR. Lawrence O. Gostin, in symphony with other leading public health scholars, has long advocated for another IHR revision. Scholars suggest fundamental modifications to financing, harmonization, evaluation metrics, core capacities, compliance, the role of civil society, human resource utilization, transparency, and more that will fortify the instrument for modern-era pandemic response.
To maximize preparedness, Gostin and co-author Rebecca Katz suggest ramping up core capacity adoption supported by “an independent evaluation system with a feedback loop and continuous quality improvement,” as well as funding mechanisms. To address IHR enforcement violations, Gostin and Katz suggest adopting carrot and stick compliance measures to encourage core capacity adoption and discourage independent action counter to evidence-based guidelines. To reduce political influence, Gostin and Katz advocate for more transparency and independence for emergency committees involved in declaring a PHEIC. They also call for publicizing the WHO Emergency Committee’s evidence base and decision-making rationales. Furthermore, Gostin and Katz suggest a tiered approach to a PHEIC declaration to counter its present reactionary role. Proactive measures are needed “long before an outbreak becomes an international emergency.” In combination, these reforms can help strengthen future versions and functioning of the IHR.
Past and present International Health Regulations are the products of experience, deliberation, and compromise. However, the modern instrument’s future remains uncertain, as it attempts to govern in a world where the WHO’s efficacy is questioned. If the global community calls for the IHR’s subsequent revisions, significant political will would be required to achieve effectual reforms. Despite an uncertain future, COVID-19 does demonstrate the profound need for an evidence-based instrument that can mobilize and coordinate numerous international actors and resources with lightning precision. One thing is certain—norms, as they stand, will not suffice in the face of another pandemic.
Lauren Tonti is a Doctoral Candidate at the Max Planck Institute for Social Law & Social Policy.