The Legal Response to Pandemics

The Strengths and Weaknesses of the International Health Regulations

In: Journal of International Humanitarian Legal Studies
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  • 1 Graduate Institute of International and Development Studies, Adjunct Professor of International Law, Geneva, Switzerland

The pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) has raised unprecedented challenges for most international legal and policy regimes and we cannot yet foresee its long-term consequences. The legal and institutional regime to prevent and control the international spread of disease, based on the World Health Organization and the International Health Regulations (ihr 2005) has also been severely tested. Critics have challenged who’s apparent politicization and the ineffectiveness of the ihr 2005 as a tool to coordinate the international response to covid-19. The ihr 2005 have codified the operational model of the who Secretariat at the time of their revision, but the assumptions about who’s epistemic authority and the willingness of states parties to conform to who’s lead have proven overoptimistic. Still, addressing some of the major weaknesses of the ihr 2005 could give them renewed momentum and nudge states towards a more coordinated and effective response to epidemics.

Abstract

The pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) has raised unprecedented challenges for most international legal and policy regimes and we cannot yet foresee its long-term consequences. The legal and institutional regime to prevent and control the international spread of disease, based on the World Health Organization and the International Health Regulations (ihr 2005) has also been severely tested. Critics have challenged who’s apparent politicization and the ineffectiveness of the ihr 2005 as a tool to coordinate the international response to covid-19. The ihr 2005 have codified the operational model of the who Secretariat at the time of their revision, but the assumptions about who’s epistemic authority and the willingness of states parties to conform to who’s lead have proven overoptimistic. Still, addressing some of the major weaknesses of the ihr 2005 could give them renewed momentum and nudge states towards a more coordinated and effective response to epidemics.

1 Introduction

The unprecedented pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) – the cause of a respiratory disease named covid-19 by who 1 – has spread with such speed, insidiousness and ferocity that it has put under stress many international political, institutional and legal regimes, from trade and human rights to regional integration in Europe and civil aviation. A notable casualty of the pandemic has been the legal and institutional system of surveillance, alert and coordination against the international spread of disease centered on the World Health Organization (who) and the International Health Regulations most recently revised in 2005 (ihr 2005).2 who alerted member states at the beginning of 2020 upon receiving a notification from China under Article 6 of the ihr 2005 about the local spread in Wuhan of atypical pneumonia. After about a month of event assessment but also apparent hesitations that have been the object of pointed criticism,3 the Director-General declared the outbreak as a ‘public health emergency of international concern’ (pheic) under Article 12 of the Regulations and issued temporary recommendations of urgent measures.4 After that dramatic step and until the end of April, the ihr 2005 have largely disappeared from who’s communications as well as from media attention. who has instead positioned itself outside the scope of the ihr 2005 but within its broader emergency functions as the central institutional hub of the response. As such, it has been providing guidance, awareness-raising and constant messaging, facilitating research and development of medical countermeasures, shipping supplies of protective equipment and supporting national health authorities through its network of regional and country offices. The Director-General characterized the outbreak as a pandemic on 11 March 2020, but that statement did not fall under the ihr 2005. The Director-General confirmed the spread of sars-CoV-2 as a pheic and issued updated and comprehensive temporary recommendations on 30 April 2020.5

Even though arguably no legal and institutional regime will protect us from a crisis of this magnitude, the ihr 2005 should represent the first line of defense against the international spread of infectious and other diseases. There are weaknesses in its design and implementation that can and must be addressed to improve the chances of containing a disease outbreak and prevent a crisis of global proportions.

2 The Role of the ihr 2005 and who in the Control of the International Spread of Disease

The International Health Regulations that replaced the pre-who international sanitary conventions among their parties, were first adopted by the World Health Assembly in 1951 and updated several times. They initially followed what David Fidler called the ‘classical regime’ of an exhaustive list of diseases, rigid maximum control measures and a relatively passive role for who,6 until they were overhauled in 2005 after a very compressed negotiation as a consequence of the panic created by the sars outbreak in 2003 and the parallel risk of an avian influenza outbreak. The revised ihr were adopted by the World Health Assembly in May 2005 and entered into force on 15 June 2007; they currently have 196 parties – the 194 member states of who as well as the Holy See and Liechtenstein. who regulations are legally binding instruments whose legal force rests on Articles 21 and 22 of the Constitution of the who.7 Unlike treaties, regulations enter into force for all who member states upon a prescribed deadline after their adoption, except for those states who affirmatively reject them or, subject to a rather complex process, file reservations.8 This was a substantial attribution of power to an international organization in 1946, justified by the priority given to having universal uniform rules on the fight against epidemics.

The ihr 2005 represent a significant departure from the previous regime and essentially codify some of the practices developed by the who Secretariat during the period of increasing obsolescence of the previous Regulations. The purpose of the ihr 2005 with regard to outbreaks is relatively narrow: surveillance, alert, guidance and coordination to prevent and control the international spread of disease. The ihr is not an operational instrument for the mobilization of financial and human resources, and neither does it purport to regulate the domestic response to outbreaks except with regard to national ‘core capacities’ which are in any case functional to prevent international spread. Finally, besides the ‘emergency’ function that attracts much attention in times of crisis, the ihr have a less spectacular but equally important ‘routine’ part (Articles 19 to 41) spelling out the responsibilities of public and private actors, detailing the health documentation applicable to international traffic and trade, and providing limits to the control measures that states can take – in particular on travelers – on the basis of a science-based risk assessment, proportionality and respect for human rights.

The scope of the ihr embraces any event that can spread diseases internationally, even beyond the ‘traditional’ natural spread of infectious pathogens. This open-ended approach is managed through a set of both procedural and substantive obligations for states parties and a coordinating role for who. The central assumption is that states will act transparently, diligently, cooperatively and in good faith, while who’s functions will be technical and transparently based on public health considerations and science-based risk assessment. A seminal obligation of all states parties, which underpins the raison d’être of the ihr 2005, is the development, strengthening and maintenance of ‘core capacities’ to ensure timely surveillance and response (Articles 5 and 13 and Annex 1). Such capacities include but also go beyond the international entry points that constituted the sole focus of the previous regime, and address directly the functioning of national public health systems, in particular laboratories, referral and reporting procedures, role of hospitals, logistics and procurement, inter-agency coordination, etc. Despite the apparent optimism of the negotiators, fulfilling those obligations has always been a major challenge. Public health systems worldwide are underinvested, subject to excessive privatization where profit is the main priority, or in fact restricts access to the most vulnerable segments of the population and creates dangerous risks and vulnerabilities. This latent inadequacy, which has been in full display in the response to covid-19, constitutes a systemic weakness that undermines the whole framework of global health security and that will require a serious self-examination by states.9

The other main obligation of states parties is to assess health events occurring in their territory using an algorithm annexed to the Regulations, to report to who regularly and without delay events that could give rise to a pheic and related data, and to verify events that who may have detected through other sources. The latter possibility for who of using other sources of information and requiring states to verify them and report back is a distinguishing feature of the ihr 2005 that was carried over from previous Secretariat practice and was used to counterbalance the reluctance or inability of states to report health events.

who supports and cooperates with states across the whole spectrum of surveillance and response, serves as an authoritative and apolitical provider of information, analyses and guidance, and may even keep information in confidence under certain conditions to reassure against possible overreactions by other states. This central function is based on the confidence that science and public health considerations may foster clarity and mutual confidence and provide the basis for a harmonized international risk management framework.

The most legally striking aspect of the ihr 2005 is the unprecedented delegation of authority to the Director-General to declare a pheic and issue temporary recommendations of urgent measures ‘to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic’ (Article 15). pheics have been declared in six situations between 2009 and 2020.10 It is remarkable that a single international official can take decisions with considerable political implications outside of an intergovernmental framework; this is an extreme manifestation of a broader trend within the global health field to depoliticize rule-making and standard-setting, which should be managed by the who Secretariat and based on solid evidence, scientific consensus and public health considerations.11 The definition of pheic in Article 1 focuses on the extraordinary nature of the event, the risk of international spread of disease and the need for coordinated international response. The definition is general and flexible, albeit somehow vague, to allow adaptation to an unpredictable range of events and specific factual contexts.12 This approach on the one hand gives the Director-General the discretionary authority to intervene before an international spread occurs in order to prevent it. This was the case of the recent outbreak of Ebola in the Democratic Republic of the Congo, where there was virtually no international spread when a pheic was declared but still a considerable risk thereof.13 On the other hand, however, who’s practice has been inconsistent as to the criteria for a pheic, criticized for its apparent politicization and not providing much clarity and predictability for future events.14 Even though the delegation of authority is premised on a non-political role by the Director-General, pheics carry evident political implications for the country concerned and beyond. It seems legitimate that the Director-General take the political context into account in managing specific risks while ensuring the integrity and credibility of his technical role. Examples of this delicate balancing act are poliomyelitis, where an important if undeclared purpose of the emergency was putting pressure on Afghanistan and Pakistan to ramp up surveillance and vaccination;15 and Zika, where risk management had to be balanced with the legitimate interest of Brazil not to undermine the 2016 Olympic games.16

pheic and temporary recommendations are customarily issued based on the advice of an Emergency Committee composed of individual experts selected by the Director-General from a roster. As I noted in a recent blog post,17 the Director-General has so far always endorsed without any modification the advice of the Emergency Committees, seeking political cover but at the same time transferring actual decision-making powers to what should remain an advisory body. This has in turn raised questions and criticism about the choice of members, the methods of work, and the closed nature of the meetings of the Committee.18 Questions have also been raised about the soundness of the risk communication performed by the Committee and the Director-General, as discussed below.

The main trade-off at the center of the ihr 2005 between national sovereignty and international cooperation – and perceived as one of its main weaknesses – is that who provides guidance for states and other actors in the form of temporary recommendations. Even though many general obligations are applicable at all times (e.g. with regard to the treatment of travelers, ships and aircraft), the specific measures that should – or should not – be adopted during a pheic are only recommended by the Director-General. Member states were not prepared to relinquish more authority to who or to limit their sovereignty any further even in the atmosphere of confidence that led to the revision process. Temporary recommendations, as noted above, are issued on the basis of a deliberative process that should strengthen their legitimacy and normative effects. They also generate accountability by serving as benchmarks to assess national responses, and engender an expectation of compliance and mutual reliance. However, based on an article (Article 43) that remained controversial until literally the last minutes of negotiation, states may adopt measures ‘which … achieve the same or greater level of health protection’ but either deviate from who’s recommendations or otherwise breach an exhaustive list of ihr 2005 provisions. This power, which echoes the escape clause of Article xx of gatt,19 is subject to substantive and procedural conditions: measures have to be based on scientific principles and evidence as well as on existing guidance by who and other international bodies. In other words, they also espouse the contextual risk assessment and management approach that cuts across the whole instrument. The measures also have to be notified to who if their interference with traffic and trade exceeds a very low threshold; this requirement, which is irregularly complied with, should enable the who Secretariat to exercise a monitoring role and generate accountability by seeking the rationale for the measures and even requesting states to reconsider them. Aggregate figures and a summary of the declared reasons for additional health measures form part of the Secretariat’s annual report to the Health Assembly on the implementation of the ihr 2005.20

3 covid-19 and the Limits of the ihr 2005

The events briefly summarized in the introduction reveal some of the main weaknesses and limits of the ihr 2005 and point to a number of problems that must be seriously addressed to shore up their credibility and effectiveness as the legal instrument for global health security.

There is much controversy around the behavior of Chinese local and central authorities in the early stages of the outbreak, but it seems confirmed that they concealed and suppressed knowledge of the event and of the evidence of human to human transmission from November 2019 until early January 2020 and possibly beyond.21 While who issued the first alert under the ihr on 4 January, it took the Director-General until the end of the month to declare a pheic. The Emergency Committee failed to reach consensus on 23 January based on uncertainties around sustained community transmission and formulated a consensual advice only on 30 January.22

This chronology points, first of all, to the limits of who’s reliance on ‘reports from sources other than notifications’ (Article 9) in the case of countries with the level of political and social control of China extending to the on-line environment. In such hopefully limited cases, who is highly dependent on government-supplied data without the possibility of independent verification. If states see an interest in concealment despite their clear obligations of transparent and proactive cooperation, they undermine the effectiveness of international response. Secondly, the deferential attitude of the Secretariat towards China remains the object of much criticism and has raised questions on the early phases of who’s engagement and the delay in declaring a pheic.23 It is also the main point of criticism used by President Trump to justify his decision to freeze who’s funding.24 Right or wrong as that criticism may be, it shows the intensely political atmosphere surrounding the ihr 2005 that challenges the formally technical and managerial role of who. As the recent threats from the Trump administration to consider withdrawing from who show, the pandemic is occurring in a very tense political environment between China and the usa, and technical neutrality is hard to maintain.25

Most importantly, the ihr 2005 establish an unrealistic binary alert system, without any formal level of alert below a pheic. This approach is inconsistent with the complex progress of a disease outbreak and may preempt earlier guidance before an event reaches the threshold of a pheic. In the case of covid-19, the current approach led who to declare an emergency one month after China’s notification and deprived it of its ‘alert’ function since the whole world was already following (or should have been following) China’s situation with alarm. It turned the pheic declaration into an exercise of political symbolism rather than risk management.

The need to introduce intermediate levels of alert has been raised on several occasions, notably by the expert committee that reviewed who’s performance after the 2014–2016 Ebola outbreak.26 Even the covid Emergency Committee noted that the rigidity of the ihr had hampered its deliberations and recommended introducing a more nuanced approach.27 That concern has been indirectly addressed in the case of the mers and 2019 Ebola outbreaks, where the respective emergency committees advised against declaring a pheic but still formulated advice for the countries concerned that were equivalent in substance to temporary recommendations.28 While that practice can be seen as a sensible solution to the ihr’s limitations, it is questionable from a legal point of view as it creates ambiguities as to the status of the committees’ advice – that is not formally endorsed by the Director-General and does not generate the same accountability as temporary recommendations – and can cast doubts on the legitimacy of the Secretariat’s sidelining of the ihr 2005.

In my view, the whole alert system and the concept of ‘emergency’ as the trigger for collective action should be reconsidered. Besides the rigidity just noted, the very notion of ‘emergency’ is unnecessarily fraught and politically loaded at national level as well as part of the narrative justifying the ‘securitization of health’.29 It may foster a climate of panic and loss of control, and makes it very difficult to complement it with a set of more gradual steps. The ihr 2005 should instead be revised to empower who to provide ‘formal’ alerts as soon as possible despite inevitable factual and scientific uncertainties, and provide escalating assessments and recommendations following a ‘traffic light’ approach if necessary. While in fact the Secretariat began providing advice on national capacities to detect coronaviruses as early as 10 January in the case of covid-19, those recommendations would arguably carry more legal weight if they were formally issued within the framework of the ihr 2005.

Another weakness of the ihr 2005, in dramatic display since the declaration of the covid-19 pheic, is the failure or refusal of many states to follow who’s temporary recommendations, in particular with regard to disruptive international measures such as border closures, travel restrictions and trade limitations. This situation has characterized the implementation of the ihr 2005 since their first major test during the H1N1 influenza pandemic, but has reached a breaking point during the current crisis. States imposing restrictions do not always report them to who together with their rationale as prescribed by Article 43, thus preempting who’s monitoring role and its attempt to support a proportionate risk assessment exercise.30 The Secretariat proactively pursues the states in question and posts the information received on a web page only accessible to other ihr 2005 parties. While this restriction is formally compliant with Article 43 and reflects the reluctance of states to expose themselves to scrutiny and pressure, it pre-empts a ‘naming and shaming’ effect. Also the annual reports by the Secretariat to the Assembly provide a cumulative picture of ‘additional measures’ but do not identify any state.31

Several factors may help explaining this disappointing state of affairs, which considerably weakens who’s credibility and authority, and generates a vicious circle of disproportionate national responses and lack of confidence in a collective approach. From an interpretive point of view, the structure of Article 43 – based on an individual risk assessment and mostly procedural obligations – makes it difficult to reach general conclusions as to the limits of lawful behavior and when the ihr are clearly breached. This in turn does not provide clear guidance to states even when they wish to remain in compliance with the Regulations, and deprives the latter of deterrent effects given also the lack of an enforcement mechanism.32

From a more technical point of view, the Secretariat and the public health expertise represented in the emergency committees share a bias against general travel and trade restrictions as ineffective and counterproductive; recommendations in previous pheics focus on responsible behaviour by travelers or exit screenings at international airports.33 While this may be correct from a public health perspective, the pheic-based approach means that temporary recommendations are projected into a more advanced stage of an outbreak, when it becomes politically difficult for states to accept and justify self-restraint in the face of possible importation of cases and the appeal of a wartime narrative identifying the threat with foreigners. If ihr-based recommendations could be issued – of course if conditions allow – at an earlier stage, they could stand a better chance to be followed and to trigger a pattern of individual and collective self-restraint based on a shared risk assessment. Secondly, the risk communication by emergency committees and the Director-General must be improved in this respect. Despite who’s ‘epistemic authority’,34 recommendations must be perceived as authoritative, credible and legitimate to foster conformity. That perception is in good part generated by a proper justification and motivation, so that the evidence and risk assessment underlying the recommendations are disclosed transparently. This important requirement has sometimes been neglected, nowhere more visibly than in the case of covid-19, where the Director-General simply stated while declaring a pheic that he ‘does not recommend any travel or trade restriction based on the current information available’ without any additional explanation.35 This is evidently not enough to convince states under pressure by the public and the media as well as by the fast spread of the virus. Moreover, that terse recommendation has been qualified by later who guidance given outside the formal scope of the ihr recognizing the possible usefulness of targeted and temporary travel restrictions to gain time and help countries with few or no cases to scale up response and preparedness.36 A more flexible and realistic approach has also been incorporated in the updated temporary recommendations issued on 30 April 2020.37

Besides the specific problems identified above, from a more fundamental perspective the ihr 2005 rests in my view on the unproven assumption that the epistemic authority of the who Secretariat asserts itself through its legal basis in the Regulations and that the ‘compliance pull’38 that its decisions and recommendations exercise do not require deterrents and formal enforcement or monitoring mechanisms to ensure conformity. That assumption goes back to the genesis of the ihr 2005, in particular the fact that states based the revised Regulations on the managerial model deployed successfully by the Secretariat during the sars crisis under the pressure of an emergency and without a specific legal basis, and were confident that it could be formalized and generalized into a binding legal instrument.39 The experience so far shows that states instead tend to manage health ‘emergencies’ based on their individual risk assessment and political considerations. ihr-based temporary recommendations constitute a reliable reference and a kind of default normative guidance in the absence of diverging national considerations.

With regard to travel and trade restrictions as the measures with the most evident international impact, the current political landscape is not favourable to bold proposals to delegate yet more power to an international Secretariat or to inject in the ihr 2005 stronger forms of enforcement than the current possible peer pressure consisting of individual reactions and countermeasures by states affected by travel and trade restrictions. Even though it is not possible to go into details in this contribution and many avenues could be explored, in my view the current recommendatory system should be supplemented by an institutional mechanism or forum for consultation among states enacting travel restrictions within the scope of Article 43. The purpose of the mechanism, actively assisted by the Secretariat that would also play a ‘good offices’ role in case of political tensions, would be for participating states to share and discuss national risk assessments, clarify intentions, problems and assumptions and aim at a more coordinated approach. The format and participation can be flexible and variable and triggered either by the Secretariat or by an affected state.

4 Conclusions

The ihr 2005 were not meant to guide international response to a pandemic of covid-19’s size and complexity. They were actually meant to prevent events of this magnitude and reduce the risk of uncontrolled spread with the related collapse of multilateral governance. As noted in the introduction, the Regulations seem to have been sidelined as a tool to manage the covid-19 pandemic since the pheic’s declaration on 30 January 2020. The guidance issued by who and posted on its web site has been elaborated by the Secretariat outside the scope of the ihr 2005 with the support of experts and partner institutions within who’s broader emergency functions.40 The Director-General could have used the Regulations more aggressively, convened the Emergency Committee regularly and issued guidance in the form of temporary recommendations. While this would have given more legal and political ‘gravitas’ to those recommendations and strengthened the Regulations as the main legal framework for normative guidance, the dizzying pace of the pandemic could have made the formal mechanism of the ihr 2005 too cumbersome and rigid. While this consideration is speculative, it may be another issue to address to render the ihr 2005 more relevant and responsive to unpredictable – and, in covid-19’s case, unprecedented – epidemics.

The foregoing issues and many more will be discussed within who and other international forums once ‘normal’ conditions resume and enable the international community to hopefully address the many gaps in global health security revealed by the covid-19 pandemic. As far as the ihr 2005 are concerned, challenges including those discussed above require a strategic and forward-looking policy decision to revise the text of the ihr 2005 in order to render them more credible as the sole global legal instrument dedicated exclusively to foster health security. The strong bias prevailing in the who Secretariat and member states against revising the ihr 2005 and instead focusing exclusively on improving their implementation has to give way to the realization that the quest for global health security must include a stronger role for both who and the ihr 2005, and that this can only be achieved by rethinking some of the main assumptions underpinning the Regulations.

1

who, ‘Naming the Coronavirus Disease (covid-19) and the Virus that Causes It’ <www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it> accessed 23 May 2020.

2

Revision of the International Health Regulations, World Health Assembly Res wha58.3 (21 May 2005).

3

David P Fidler, ‘The World Health Organization and Pandemic Politics’ (Think Global Health, 10 April 2020) <www.thinkglobalhealth.org/article/world-health-organization-and-pandemic-politics> accessed on 13 April 2020.

4

who, ‘Statement on the Second Meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV) (30 January 2020) <www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)> accessed on 14 April 2020.

5

who, ‘Statement on the Third Meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of coronavirus disease (covid-19)’ (30 April 2020) <www.who.int/news-room/detail/01-05-2020-statement-on-the-third-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-coronavirus-disease-(covid-19)> accessed on 23 May 2020.

6

David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4 Chinese Journal of International Law 325.

7

Constitution of the World Health Organization (adopted 22 July 1946, entered into force on 7 April 1948) 14 unts 185.

8

So far the Health Assembly has adopted two regulations: the International Health Regulations subject to several revisions; and the so-called Nomenclature Regulations dealing with statistical classification of causes of morbidity and mortality. On the Nomenclature Regulations, see Gian Luca Burci and Claude-Henri Vignes, World Health Organization (Kluwer 2004) 132.

9

‘Report of the Review Committee on Second Extension for Establishing National Public Health Capacities and on ihr Implementation’, 68th World Health Assembly (27 March 2015) who Doc A68/22 Add. 1.

10

The situations in question include the pandemic of H1N1 influenza (2009–2010); the renewed spread of poliomyelitis (2014–present); the Ebola outbreak in West Africa (2014–2016); the outbreak of Zika in Brazil and elsewhere (2016); the outbreak of Ebola in the Democratic Republic of the Congo (2019–2020); and the pandemic of covid-19 (2020). who, ‘Strengthening Health Security by Implementing the International Health Regulations (2005) <www.who.int/ihr/procedures/ihr_committees/en/> accessed 14 April 2020.

11

That authority has been described as ‘a fine instance of governance by information’ and ‘an instrument of international public authority’. Armin Von Bogdandy and Pedro ­Villareal, ‘International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis’ (2020) Max Planck Institute for Comparative Public Law and International Law Research Paper Series 2020-07, 12 <papers.ssrn.com/sol3/papers.cfm?abstract_id=3561650> accessed 9 April 2020.

12

The definition reads as follows: ‘“public health emergency of international concern” means an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response’.

13

who, ‘Statement on the Meeting of the International Health Regulations (2005) Emergency Committee for Ebola Virus Disease in the Democratic Republic of the Congo’ (17 July 2019) <www.who.int/ihr/procedures/statement-emergency-committee-ebola-drc-july-2019.pdf?ua=1> accessed 14 April 2020.

14

Pedro A Villareal, ‘Public International Law and the 2018–2019 Ebola Outbreak in the Democratic Republic of the Congo’ (ejil:Talk!, 1 August 2019) <ejiltalk.org/public-international-law-and-the-2018-2019-ebola-outbreak-in-the-democratic-republic-of> accessed 14 April 2020.

15

who, ‘who Statement of the Meeting of the International Health Regulations Emergency Committee Concerning the International Spread of Wild Poliovirus’ (5 May 2014) <www.who.int/mediacentre/news/statements/2014/polio-20140505/en/> accessed 14 April 2020.

16

who, ‘who Statement on the Third Meeting of the International Health Regulations (2005) Emergency Committee on Zika Virus and Observed Increase in Neurological ­Disorders and Neonatal Malformations’ (14 June 2016) <www.who.int/en/news-room/detail/14-06-2016-who-statement-on-the-third-meeting-of-the-international-health-regulations-(2005)-(ihr(2005))-emergency-committee-on-zika-virus-and-observed-increase-in-neurological-disorders-and-neonatal-malformations> accessed 14 April 2020.

17

Gian Luca Burci, ‘The Outbreak of covid-19 Coronavirus: Are the International Health Regulations Fit for Purpose?’ (ejil:Talk!, 27 February 2020) <ejiltalk.org/the-outbreak-of-covid-19-coronavirus-are-the-international-health-regulations-fit-for-purpose/> accessed 14 April 2020.

18

Mark Eccleston Turner and Adam Kamrad Scott, ‘Transparency in ihr Emergency Committee Decision Making: The Case for Reform’ (2019) 4(2) bmj Global Health e001618.

19

General Agreement on Tariffs and Trade (adopted 30 October 1947, provisionally applied 29 July 1948) 55 unts 194.

20

who Director-General, ‘Annual Report on the Implementation of the International Health Regulations (2005)’, 73rd World Health Assembly (12 May 2020) who Doc A73/14.

21

The article of the South China Morning Post reporting on the outbreak has been removed from the web. It is cited in Matthew Henderson et al, ‘Coronavirus Compensation? ­Assessing China’s Potential Culpability and Avenues of Legal Response’ (Henry Jackson Society 2020) 14 <www.henryjacksonsociety.org/wp-content/uploads/2020/04/Coronavirus-Compensation.pdf> accessed 14 April 2020.

22

who’s web site offers a constantly updated chronology at <www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen> accessed on 11 April 2020.

23

Fidler (n 3).

24

‘Coronavirus: US to Halt Funding to who, Says Trump’ (bbc News, 15 April 2020) <www.bbc.com/news/world-us-canada-52289056> accessed 23 May 2020.

25

‘Coronavirus: Trump Gives who Ultimatum over covid-19 Handling’ (bbc News, 19 May 2020) <www.bbc.com/news/world-us-canada-52718309> accessed 23 May 2020. As of 23 May 2020, funding was still frozen pending a request by President Trump that who show its independence from China in its response to covid-19.

26

‘Report of the Review Committee on the Role of the International Health Regulations (2005) in the Ebola Outbreak and Response’, 69th World Health Assembly (13 May 2016) who Doc A69/21, 11.

27

‘In the face of an evolving epidemiological situation and the restrictive binary nature of declaring a pheic or not, who should consider a more nuanced system, which would allow an intermediate level of alert. Such a system would better reflect the severity of an outbreak, its impact, and the required measures, and would facilitate improved international coordination, including research efforts for developing medical counter measures.’ who, ‘Statement on the Meeting of the International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)’ (23 January 2020) <www.who.int/news-room/detail/23-01-2020-statement-on-the-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)> accessed 14 April 2020.

28

See for example who, ‘who Statement on the Fifth Meeting of the ihr Emergency Committee concerning mers-CoV’ (14 May 2014) <www.who.int/mediacentre/news/statements/2014/mers-20140514/en/> accessed 14 April 2020.

29

David P Fidler, ‘Public Health and National Security in the Global Age: Infectious Diseases, Bioterrorism, and Realpolitik’ (2003) 5 George Washington International Law Review 787.

30

who Director-General (n 20).

31

Ibid.

32

Burci (n 17).

33

who, ‘who Statement on the Third Meeting of the International Health Regulations Emergency Committee Regarding the International Spread of Wild Poliovirus’ (14 ­November 2014) <www.who.int/mediacentre/news/statements/2014/polio-20141114/en/> ­accessed 14 April 2020.

34

Jan Klabbers, ‘The Normative Gap in International Organizations Law: The Case of the World Health Organization’ (2019) 15 International Organizations Law Review 272.

35

who (n 4).

36

‘Evidence on travel measures that significantly interfere with international traffic for more than 24 hours shows that such measures may have a public health rationale at the beginning of the containment phase of an outbreak, as they may allow affected countries to implement sustained response measures, and non-affected countries to gain time to initiate and implement effective preparedness measures. Such restrictions, however, need to be short in duration, proportionate to the public health risks, and be reconsidered regularly as the situation evolves ….’ who, ‘Updated who Recommendations for International Traffic in Relation to covid-19 Outbreak’ (29 February 2020) <www.who.int/news-room/articles-detail/updated-who-recommendations-for-international-traffic-in-relation-to-covid-19-outbreak> accessed 14 April 2020.

37

who (n 5).

38

To use an expression popularised by Thomas M Franck, The Power of Legitimacy Among Nations (oup 1990).

39

Christian Kreuder Sonnen, Emergency Powers of International Organizations: Between Normalization and Containment (oup 2019) 152.

40

Burci (n 17).

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