Pandemics and the Need for Global Governance

The Covid-19 pandemic exposes a hole in global governance. Thousands upon thousands of lives have fallen and will continue to fall through this hole.

Key to defeating a contagious outbreak is epidemiological speed. Data indications of an outbreak should be analyzed in near-real time. If the outbreak poses risk of contagion, it is imperative to implement mechanisms for measuring its lethality and transmissability. The virus has to be tested and genetically decoded, and the world’s collective bioscientific expertise must be mobilized to develop vaccines and treatments. All this should be done fast. And this all has to be done against the background of the public health community arduously encouraging social distancing and treating the sick.

Nothing like this has happened. The World Health Organization (WHO) had reason to suspect that COVID-19 could evolve into a pandemic as of last New Year’s Eve. (Earlier information apparently did not get to the WHO; therefore, the WHO had no reasonable belief that a contagious disease might be afoot before the New Year.) At that time, WHO officials began communicating with Chinese officials about the disease, though the frequency and intensity of these communications are uncertain.

A WHO visit to China on January 28 focused on response efforts to the coronavirus. Personnel brought no sophisticated epidemiological equipment, nor conducted any type of investigation that might have spurred scientific pursuit of new tests, treatments, and vaccines. Indeed, a WHO team was not allowed into Wuhan, the epicenter of the outbreak, until mid- February. By then, of course, China had already told the world that the COVID-19 virus was capable of human-to-human transmission.

Precious weeks were lost before the start of a full-out effort to contain the spread of the disease or to engage research and development of useful medicines. From the perspective of epidemiology and bioscience, this time was unnecessarily wasted, costing the world tens of thousands of deaths, and spreading severe constraints on human economic and social activity.

The point here is not to chastise anyone. The WHO has neither the authority nor capacity to gather evidence of contagious disease on its own; it may not even go to the outbreak source if the territorial State does not consent. WHO is wholly reliant upon host States for information about conditions that might warrant a global public health response.

Simply asserted, the global system for defeating contagion failed with regard to COVID-19. Even if national and international officials did not live up to their responsibilities, the fault lies with the global system that allowed them to do so and had no capacity itself to otherwise diagnose the situation. There is no international body, including the WHO, that has authority to detect and diagnose an outbreak, nor to guide the global response to emerging contagion. In the name of human security, this governance failure must be addressed at the global level.

Humanity needs governance reform to improve capacity for confronting and defeating contagion, even as it respects States’ prerogatives, and while protecting medical privacy.  Recently, Australian Prime Minister Scott Morrison proposed that international inspectors have authority to conduct permitless inspections.  In the same vein, this essay calls for establishment of a new international organization (the International Biology and Epidemiology Organization (IBEO)?) with primary authority to identify risks of contagious disease as early as possible and, as appropriate, marshal resources and expertise against the disease.

It is important that the IBEO have de jure authority, preferably from United Nations Security Council action that establishes it as a monitoring and coordinating mechanism, and defines its mandate and basic structure. The IBEO should have broad responsibility and capacity to detect and investigate emerging disease outbreaks. As U.N. Security Council resolutions carry the force of international law, its establishment of the IBEO would signal seriousness of purpose to governments and other stakeholders.

At its core, the IBEO would be an organization of bioscientific and epidemiological expertise with a database of information about contagious outbreaks, including but not limited to national reports of outbreaks to the WHO. Currently, should a State inaccurately report a disease outbreak, whether intentionally or negligently, the entire global system for diagnosing and responding to the outbreak is effectively stalled. This is unacceptable. There is no reason to jeopardize human security from a pandemic due to a government’s recalcitrance. The IBEO should have independent sources of information to determine if there is reasonable suspicion of an outbreak, and it should have authority to act on the basis of that information.

If the IBEO determines that an outbreak poses a global threat, it must notify the Security Council, and take primary responsibility for initiating and facilitating sharing of vaccine-related and other medical research. The IBEO should be prepared to promptly identify, decode, and begin testing of the disease agent. Accordingly, it must be authorized to conduct on-site inspections of a disease outbreak, with or without State approval.

While many of the IBEO’s functions will scarcely impact any particular States, permissionless inspections may face objections as an intrusion on sovereignty. This objection should be met directly. In legal terms, consent to inspection of disease outbreaks wherever, whenever, must be deemed a fundamental obligation of all States – an inherent condition of being a member of the world community. It seems obvious that as a pandemic outbreak is a threat to human security; no State should be able to delay inspections designed for diagnosis and containment of that outbreak and thereby risk planetary crisis.

That said, establishing contours on the IBEO’s authority to inspect is critical. Strict metrics should guide IBEO determinations, both as to what conditions justify inspection, and how inspections are carried out. The most severe objection to inspection without permission is the possibility of abuse — that the procedure will be politically or otherwise skewed. Delineation of rigorous metrics for inspections undermines this objection.

IBEO inspections would not be comparable to Chemical Weapons Convention challenge inspections or Nuclear Non-Proliferation Treaty special inspections. Under these weapons control treaties, inspections are based on suspicion that there has been conduct that might constitute a breach of the treaty. In the disease context, an inspection, even without permission, does not imply that the State has done anything wrong (although refusal to cooperate with the inspection may rouse suspicion of State culpability for the outbreak).

Another distinction is the imperative of speed, as mentioned earlier. In the weapons control contexts, sometimes there is a need for prompt access to particular facilities, but even in these cases, hours rarely matter. In most situations, weeks don’t matter. But in the disease context, minutes matter. Necessarily, there should be minimum bureaucratic control over decisions to inspect. While there should be a transparent and fair procedure for making inspection decisions, the procedure should not be time-consuming. Again, defining metrics for how decisions will be made has the effect of reducing objection to such inspections.

Given the inherent nature of pathogens, the geographic scope of an inspection should be virtually unlimited, wherever necessary to gain information about the disease. This authority, however, should recognize that national security information as well as confidential business information requires effective protection. Private as well as public entities are likely to resist inspection if the inspectors can walk out with intellectual property or national secrets. Accordingly, there should be stipulations concerning how data is processed and to whom such data is reported. Information has to be carefully handled lest reasonable interests in confidentiality are disregarded.

Finally, the IBEO must have specialized technological capabilities, with trained personnel, that can be deployed on a moment’s notice, at least for diagnostic purposes. It will be an enormous asset to have an international organization that is a global concentration of expertise and has the ability to rapidly deploy equipped teams to undertake scientific tests. Such an organization will have a standing reputation for scientific objectivity; the composition of an inspection team will not be politically controversial.

Pandemic disease is among the biggest threats to human security in our time. Certainly, it most urgently jeopardizes all humanity. By any rational measure, institutions with governance responsibility for confronting the COVID-19 virus made many mistakes, which led to intolerable levels of death and loss. The real shame here is that while there have been pandemics before, never has humanity had the scientific and technological capacities to protect us all.

Simply put, in a pandemic, it is imperative to have the best science. To have the best science, it is imperative to have effective governance, with resources and legitimacy to seek out and share information. Next time, humanity deserves better global governance.

Image: A photo taken on February 24, 2020 shows the logo of the World Health Organization (WHO) at their headquarters in Geneva. Photo by FABRICE COFFRINI/AFP via Getty Images

 

About the Author(s)

Barry Kellman

Law professor at DePaul University College of Law (since 1989); chaired the Committee of Legal Experts for the Chemical Weapons Convention (1992); initiated and co-chaired the Interpol Program on Prevention of Biological Terrorism