COVID-19 and International Law Series: WHO’s Pandemic Response and the International Health Regulations

[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]

International law has long regulated the management of global public health threats. Ever since 1851, when the first International Sanitary Conference attempted to harmonize quarantine procedures among European States, countries have repeatedly united around the need to prevent the spread of disease. The latest iteration of the global rules on pandemics, the 2005 International Health Regulations (IHR), set requirements for how States should report outbreaks, manage diseases within their borders, and cooperate to prevent their spread.

The rules, the first version of which was adopted by the World Health Organization (WHO) in 1969, are binding on all 196 WHO members. They aim to “prevent, protect against, control, and provide a public health response to the international spread of disease” while minimizing interference with “international traffic and trade” and respecting “the dignity, human rights and fundamental freedoms” of all people. The regulations allow the WHO to coordinate a global disease surveillance network made up of monitoring systems with each state in order to catch outbreaks that risk turning into international health emergencies and report them to the WHO.

Yet during COVID-19, the IHR have too often proven ineffective in shaping the response of States, and even the WHO itself, to the pandemic. Chinese officials reportedly attempted to cover up the initial spread of the disease. The WHO took a full month to declare a public health emergency after learning about the outbreak, leading many to argue it should have moved more quickly. Many States broke with the WHO’s recommendations by imposing strict travel bans, stay-at-home orders, and other repressive measures, although, in retrospect, these moves were likely justified. And, especially early on in the pandemic, competition rather than cooperation ruled the day.

The IHR are binding on WHO members, but they contain no enforcement mechanism. As a result, the WHO has been unable to hold States to their obligations – or discipline those that have failed to meet them. As the disease surges once again in Europe and the United States, it is time for governments to find ways to strengthen the world’s health regulations and return to the principle of cooperation that undergirds them.

The Role of the WHO and the International Health Regulations

Although COVID-19 is hardly the first global pandemic, it may be the first to take place despite an international agreement specifically designed to stop it. In 2005, in the wake of China’s failure to report the 2002 SARS outbreak to the WHO for more than two months, the World Health Assembly, made up of the WHO’s members, revamped the IHR, which govern pandemic prevention, detection, and response.

Before 2005, the rules had covered just three diseases: cholera, plague, and yellow fever. The new regulations covered all potential public health hazards and contained stricter requirements on States to alert the WHO to outbreaks.

The new rules also gave the Director General of the WHO, acting on the advice of an emergency committee of experts, power to declare a Public Health Emergency of International Concern. The regulations define such an emergency as an event that “constitute[s] a public health risk to other States through the international spread of disease” and “potentially require[s] a coordinated international response.” The WHO has declared six public health emergencies since 2005, most recently on January 30 of this year in response to the novel coronavirus outbreak.

Apart from giving the WHO the ability to declare an emergency, the regulations impose four main requirements on WHO members: First, they must notify the WHO within 24 hours of all public health events inside their territory that might constitute an international public health emergency. After States send a notification to the WHO, they must keep the WHO up to date with “timely, accurate and sufficiently detailed” information about the health event. Second, States must improve their domestic capacities to prevent, detect, and respond to the spread of diseases that threaten the international community. States get to decide how they will fulfill this obligation, but they must “uphold the purpose” of the regulations through their domestic efforts. Third, States are limited in how they can respond to disease outbreaks once they occur. The regulations instruct countries to impose only those measures that are supported by scientific evidence, appropriate to the risks involved, and maintain respect for human rights. In general, health measures must follow WHO recommendations, although States are allowed to impose additional measures under some circumstances. Finally, governments must report to the WHO any public health measures they take that constitute a “significant interference” with international traffic – meaning delaying the entry or departure of travelers or goods for more than 24 hours – along with the rationale for the action and the evidence behind it.

Potential Breaches of the WHO’s Regulations During the COVID-19 Pandemic by China, the WHO, and Other Member States

States, and the WHO itself, may have breached the IHR in several ways during the current crisis. First off, China may have violated the requirement to report disease outbreaks to the WHO at the start of the pandemic – although the fault may have been more with local officials in Wuhan than the central government in Beijing.

China first notified the WHO of a cluster of novel coronavirus-like infections on December 31, 2019, but the disease had been circulating in Wuhan for several weeks before that. Yet throughout December, the Wuhan authorities had insisted that the situation was under control. Local police had accused several people who posted on social media about the outbreak of spreading “rumors” and the city’s medical authorities had barred a doctor from speaking publicly about patients suffering from a SARS-like disease. Subsequent assessments by the U.S. intelligence community have reportedly concluded that Wuhan authorities played the decisive role in covering up the initial spread of the virus, keeping central party officials in the dark.

Beijing may have been unaware of the outbreak at the start, but its later delays in releasing information may nevertheless have violated its obligations under the IHR. In January, after reporting the situation in Wuhan to the WHO, Beijing continued to downplay its severity, claiming, for example, that the virus was not spreading from human to human for days after Chinese officials reportedly knew that it was. China reportedly sat on other information, too, including the genome of the virus and data from patients. That slow walking of crucial information may have run afoul of the IHR’s requirement that States keep the WHO abreast of “timely” and “accurate” public health information about the outbreak.

Even after China reported the cluster of cases on December 31, the WHO took a full month to declare a “Public Health Emergency of International Concern,” the IHR’s official international alert. That delay reflected, in part, China’s decision to prevent health care workers, scientists, and reporters from speaking publicly about an outbreak of SARS-like illnesses in December and, even after acknowledging the cluster of infections on December 31, to decline for weeks offers from the WHO and the U.S. Centers for Disease Control to send teams of experts to Wuhan.

In the intervening weeks, more than 8,000 people contracted the disease, 170 of them died, and more than 35 million people in Hubei were placed under lockdown and cut off from the rest of China. Tedros Adhanom Ghebreyesus, the WHO Director General, convened multiple emergency committee meetings in late January before deciding to that a declaration was warranted. On January 23, the day the Chinese government locked down Wuhan, a meeting of the WHO’s emergency committee did not recommend declaring an emergency. Several members concluded that it was “too early,” since there was only “a limited number of cases abroad.”

That decision not to announce an emergency may itself have run counter to the IHR. Lawrence Gostin, Roojin Habibi, and Benjamin Mason Meier have argued that the emergency committee members “misunderstood” the definition of a health emergency given in the WHO’s own regulations, which requires only the “potential” for international spread and says nothing about the timing of a declaration. The rules, however, give the Director General the power to “make the final determination” over declaring a public health emergency. That discretion may mean that the ultimate decision not to make the declaration did not violate the regulations, even if the emergency committee got the definition of an emergency wrong.

After the WHO finally declared an emergency, many States’ responses arguably bent the rules, as well. The WHO’s regulations require States to generally follow WHO recommendations in responding to disease outbreaks. When States take health measures that go beyond what the WHO recommends, those measures must be as effective as the WHO’s recommendations (or more effective), follow scientific principles and evidence, not intrude more on international travel or be “more invasive or intrusive to persons” than “reasonably available alternatives,” and be implemented with “full respect” for people’s “dignity, human rights and fundamental freedom.”

When the WHO declared a health emergency on January 30, it recommended against “any travel or trade restriction.” While the recommendation against limiting travel may seem inexplicable in light of what unfolded, it’s important to remember that States will be reluctant to report outbreaks if the result is that they are immediately closed off from global travel. The IHRs rules were designed with this in mind.  States nonetheless ignored the WHO’s recommendation: the very next day, the U.S. government banned entry for non-citizen travelers who had been in China in the past 14 days. Over subsequent months, governments across the world responded to the pandemic with sweeping international travel bans, flight restrictions, visa cancellations, and quarantine requirements.

Early in the pandemic, some scholars argued that these travel restrictions violated the WHO’s rules. Public health researchers, they noted, had found little evidence that travel restrictions worked in the face of pandemic viruses similar to SARS-CoV-2, and the WHO had advised that such restrictions did more harm than good. The authors of one article in the Lancet argued that since the WHO had provided alternatives, including “risk communication, surveillance, patient management, and screening at ports of entry and exit,” travel bans violated the regulations’ instruction that health measures not restrict international traffic more than “reasonably available alternatives.”

In retrospect, although flight restrictions and border closures didn’t work everywhere, according to one study they did play an important role in slowing international transmission. And in countries able to seal themselves off entirely, travel restrictions may have helped significantly. A study of Australia early on in the pandemic concluded that the country’s imposition of a travel ban on February 1 reduced cases by over 80 percent. Those conclusions suggest that at least some governments may have been justified in imposing restrictions despite the WHO’s recommendations to the contrary, as the “reasonably available” alternatives wouldn’t have been as effective.

The WHO also did not advise governments to impose lockdowns early on in the pandemic, although it did not recommend against them and has since endorsed them in limited circumstances. Despite an initial burst of enthusiasm for China’s strict approach – “perhaps the most ambitious, agile and aggressive disease containment effort in history,” according to the WHO – the organization recommended only that countries plan to take measures such as suspending large-scale gatherings and closing schools and workplaces, not mass stay-at-home orders and internal travel restrictions.

Once again, countries paid little attention to this recommendation. Many governments imposed tight limits on their citizens’ movements, ordering people to stay at home except in a few enumerated circumstances. Some used emergency authorities as an excuse to undermine democracy and violate human rights.

To be clear, while the WHO did not recommend lockdowns, it never explicitly opposed them either, and once countries started imposing them, it characterized them more as a last-resort option than a violation of the rules. In April, the WHO appeared to accept lockdowns as legitimate when it laid out factors for governments to consider before lifting disease control orders. The WHO wanted “as much as anyone” to see restrictions relaxed, Tedros said, but easing “too quickly” could lead to a resurgence of the virus. In July, the WHO urged countries to find other ways to manage the virus, saying that lockdowns were not “a long-term solution.” And in October, David Nabarro, one of the WHO’s special envoys on COVID-19, said that the WHO did not support lockdowns as “the primary means” of controlling the virus; they could be justified under some circumstances, he said, “but by and large, we’d rather not do it.” The widespread use of lockdowns to control the virus is thus likely not a violation of the IHR.

Perhaps most important, countries may have breached the IHR by failing to work together to combat COVID-19. The regulations require States to “collaborate . . . to the extent possible” by coordinating medical, logistical, financial, and legal responses to public health emergencies. The regulations don’t define what this collaboration means in practice, but many States arguably violated it in the early months of the pandemic, when governments slammed borders shut, hoarded scarce medical supplies and personal protective equipment, and blamed one another for the spread of the disease. Even within the European Union, countries ignored the bloc’s rules guaranteeing freedom of movement to impose unilateral border closures. Yet here, as in other areas, the WHO discovered that in the midst of a crisis, it had little power to convince states to follow the IHR’s provisions.

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The inability to enforce its rules unfortunately fits into a larger pattern for the WHO. The organization serves an invaluable role as a center of scientific expertise and a champion for global health. Yet it is too often powerless in the face of its biggest funders, unable to criticize them when they violate the WHO’s rules for fear of retaliation. The extent of those problems, and potential reforms to address them, will be the topic of the next article in our series on COVID-19 and international law.

Image: Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization (WHO), holds a virtual briefing on the COVID-19 pandemic on May 22, 2020. Photo UN Photo/Loey Felipe.

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Alasdair Phillips-Robins

Alasdair Phillips-Robins is a second-year student at Yale Law School, where he is a Hansell Fellow at the Center for Global Legal Challenges and a member of the Media Freedom & Information Access Clinic. Follow him on Twitter at (@alasdairpr)