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It is an unavoidable fact that communicable diseases do not respect national borders and international cooperation is needed to stop their spread. The World Health Organization [“WHO”], after over a decade of discussions, formulated the International Health Regulations [“IHR”] in 2005 to regulate the public health response to the international spread of disease. It has been widely accepted however, that due to the lack of enforcement powers granted to the WHO, the treaty failed to live up to its desired objective when the world need(ed) the multi-lateral organization to step up during COVID-19. This provides the perfect opportunity to re-assess global governance in public health and formulating a new pandemic treaty is the correct way forward.
Global Governance and A Pandemic Treaty
The United Nations correctly defined global governance as encompassing ‘the totality of institutions, policies, norms, procedures, and initiatives through which States and their citizens try to bring more predictability, stability, and order to their responses to transnational challenges’. However, it has been consistently argued [see here and here] that global governance structures have failed to deal with transnational challenges such as the public health response to the spread of disease. COVID-19 was not the first international public health emergency that the WHO failed to effectively deal with in the 21st century. The IHR regime has failed several times during past public health emergencies, such as the H1N1 pandemic and the Ebola epidemic. This effectively makes the requirement for a pandemic treaty an absolute necessity, as underscored by the Director General of the WHO. There is extensive literature [see here and here] on the issues which a new pandemic treaty should broadly cover and same will not be reiterated here. Instead, the authors, by way of this blog, intend to discuss the three most important provisions which the proposed treaty must include in order to ensure its success in reality.
The Pandemic Treaty should have a Robust Notification Obligation
The most effective way of preventing a disease from becoming a pandemic is by having a robust information exchange system that obligates States to notify the WHO within 24 hours of assessment of public health information of an event which may constitute a pandemic. Scientific evidence from past pandemics/epidemics clearly highlight how delay of even a few days might prove costly in stopping the international spread of a disease. A similar provision is reflected in Article 6 of the IHR. However, States seldom fulfilled this international obligation when it mattered. For instance, China, during both the SARS epidemic and the early days of COVID-19, failed to disclose crucial public health information which could have possibly stopped the international spread of both diseases.
The Pandemic Treaty should endow the WHO with enforcement powers in order to effectively ensure that State parties fulfill their treaty obligations. The enforcement powers should inter alia include the power of the WHO to impose economic and diplomatic sanctions. The organization’s overt reliance on diplomatic tactics like ‘praising and shaming’ has not proved to be a success in the last decade. State parties have been running under the assumption that there are no consequences for violating their treaty obligations, which can be evidenced from numerous violations of the IHR. Furthermore, the explicit power should be given to the WHO to act on unofficial data/information available on social media after verification of its veracity. COVID-19 has demonstrated the immense ability of social media to disseminate information in an expedited manner. The WHO being empowered to act on such information will further help in pandemic preparedness.
Enforcement of international law is however a controversial topic and only a unified United Nations Security Council [“UNSC”] has the power to really do so. It is not lost on the authors that the current political reality makes it highly unlikely that such enforcement power would be given to the WHO under the pandemic treaty. Notwithstanding, the spread of disease knows no political or territorial boundary and the granting of some enforcement power is indeed a step toward effective global governance under international law.
The Pandemic Treaty should make Recommendations on Travel Restrictions Binding on State Parties
Excessive travel restrictions imposed by countries have been a feature of nearly all pandemics/epidemics in the 21stcentury, even though the WHO [based on overwhelming scientific evidence] has consistently highlighted the futility of excessive travel restrictions. One of the main goals of the IHR was to curb such excessive travel restrictions during public health emergencies. It aimed to achieve this through Article 43 which mandates two primary things: First, it makes it mandatory for States to notify the WHO within 48 hours of implementation of such restrictions. Second, States cannot impose restrictions to international traffic in excess of reasonably available alternatives, that would achieve the goal of stopping the spread of disease. Even though scientific evidence in nearly all epidemics/pandemics of the 21st century highlighted that the imposition of excessive travel regulations does not stop the spread of disease, States imposed themwithout fulfilling their international obligations under Article 43 of the IHR.
The Pandemic Treaty should have similar provisions but the recommendations of WHO in regards to entry restrictions should be binding on States for the duration of the pandemic. If a State does not agree with the WHO recommendations, there needs to be mandatory consultation with proper sharing of scientific evidence, as travel restrictions cause heavy economic losses, as experienced by Mexico during the H1N1 pandemic. If a State does not agree after the consultation with WHO, the treaty should have a compromissory clause granting jurisdiction to the International Court of Justice [“ICJ”], by which States can bring claims for economic losses caused by other States’ unnecessary travel regulations.
At the same time, the likelihood that such an overarching power would be granted to the WHO is slim, given that it is improbable that States will be willing to limit their sovereign power to police their borders, even during a pandemic. Such restrictions are however necessary to stop a virulent virus without causing unnecessary economic losses. Another argument that can be made against granting ICJ jurisdiction is that it might not be the right forum to deal with questions involving detailed interpretations of scientific/technical evidence, in order to determine whether travel regulations were indeed necessary. The ICJ has however successfully dealt with scientific/technical evidence in the past [see Whaling Caseand Bosnian Genocide Case].
The Pandemic Treaty should establish a Conference of Parties (“COP”)
The Pandemic Treaty should establish a COP to aid with the review and implementation of the Pandemic Treaty. This would roughly be in line with what exists under Article 63 of the UN Convention Against Corruption 2003 (“UNCAC”)regime. Under the COP, an open ended inter-governmental ‘Implementation Review Group’ should be established which oversees the entire review process and reports directly to the COP. At the beginning of the review process, each State party shall be mandated to appoint a fixed number of Governmental Experts, a list that will be maintained by the WHO Secretariat. In one review cycle, a State could be reviewed by two other States, with pairings determined by the drawing of lots. Before the two States begin their evaluation, the country under review must complete a full self-assessment checklist, with questions based on domestic steps taken to implement the Convention. The two reviewing States will examine the responses to this self-assessment checklist as well as any supplemental materials provided. The COP will have the power to independently verify the responses of the country being reviewed and the WHO will have the power to penalize false declarations. The two countries will prepare a ‘Country Evaluation Report’ after thorough analysis and study, which will detail the successes, failings, and observations of the state under review. This review process will be in contrast with the review process under Article 15 of the Paris Agreement which ais non-punitive and takes into account national capabilities and circumstances of the parties. A strict uniform review process under the Pandemic Treaty is an absolute necessity, as the spread of the virus does not discriminate on grounds of circumstance and capabilities of countries.
The suggestions for the pandemic treaty given by the authors might be rejected by some international lawyers of a realist school of international law, as infringing State sovereignty. However, the emerging challenges to humanity of climate change and pandemics merit an effective change in global governance, by rethinking the role of global institutions [see here and here for such initiatives]. COVID-19 is just a reminder of how ineffective our global institutions are without proper enforcement powers to deal with transnational issues. The ongoing pandemic has taught the world that the ‘me first’ attitude will not stop the spread of the virus and an effective global governance regime is the need of the hour. Hopefully, the international order has learnt its lesson and will finally create a legal regime that can effectively deal with the dynamic international challenge of stopping the spread of communicable diseases.
The authors are Final Year Students pursuing B.A.LL.B and B.B.A.LL.B at the National Law University Odisha, India.