International Legal Obligations for Pandemics and Restructuring the World Health Organization

BY AADITHYA GULYANI

Image Credits: hectorchristiaen on stock.adobe.com.

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic, marking the onset of a global health crisis that profoundly changed the world. The pandemic resulted in over 687 million confirmed cases and nearly 6.87 million deaths globally as of May 2, 2023. Beyond the immediate health consequences, COVID-19 triggered significant economic downturns, with the global GDP contracting by 3.4% in 2020. This economic strain led to widespread unemployment, business closures, and disruptions in global supply chains, exacerbating social inequalities and contributing to political instability in various regions.

The pandemic also exposed weaknesses in global health governance and coordination. Disparities in healthcare infrastructure and resource allocation became evident, particularly in low-income countries. Politics took precedence over health considerations, and what was believed to be a robust legal framework for ensuring international health security and accountability among nations ultimately failed when it was needed most. Reforming these institutions––specifically, the WHO as the primary coordinating body for international health responses––and reevaluating member states’ obligations under international law are essential to improving global preparedness and strengthening responses in addressing future public health emergencies.

International Legal Obligations During Pandemics

The International Health Regulations (IHR) are legally binding international law adopted under Article 21 of the WHO Constitution. All 194 WHO members are bound by the IHR for coordination of international public health emergencies. The IHR outlines four main obligations:

1) Detect possible public health emergencies with the potential to become international in scope through surveillance systems and laboratories.

2) Establish a “National Focal Point” center that is accessible at all times to report any potential threats to the WHO.

3) Work with other countries and the WHO during public health emergencies for decision making.

4) Respond to public health emergencies.

All member states that are a party to the agreement are required to implement it into national law. The United States, through a type of Executive Order called an “executive agreement,” implemented the IHR (2005) on July 18, 2007. The WHO monitors implementation and compliance through surveys provided to states but has no enforcement mechanism beyond relying on the goodwill of countries. In cases of noncompliance, the WHO can raise disputes against member states, which are then referred to the World Health Assembly (WHA), the decision-making body of the WHO. In the case of a dispute between states, they are first encouraged to solve the issue bilaterally, and if that fails, there are escalating mechanisms such as referring to the WHO Director-General or activating dispute settlement procedures in Article 56 of the IHR (2005). Article 56 provides for states to engage in binding arbitration at the Permanent Court of Arbitration (PCA). States must voluntarily accept the jurisdiction of the PCA for a dispute, and to date no state has done so, including the United States. Given that all the available dispute settlement procedures under the IHR (2005) are voluntary, examining other bodies of law such as international human rights law can reveal any additional obligations states may have in addressing public health emergencies.

The International Health Regulations are not the only international law concerning health. Numerous human rights treaties such as the Universal Declaration of Human Rights (UDHR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) recognize the “right to health”. The right to health contains freedoms and entitlements, specifically the right to “prevention, treatment and control of diseases.” In the context of a public health emergency, this right could be broadly interpreted for governments to implement various public health measures to protect their populations.

States that have ratified the ICESCR are legally bound by it, but the United States has only signed the treaty and never sent it to the Senate for ratification. Like the IHR, the ICESCR also features limited dispute mechanisms, with few, if any, punitive measures to compel compliance for non-participating states. Some state governments have implemented the treaty in various forms such as incorporating the rights in their constitutions or creating a private cause of action allowing individuals to sue the government for an alleged violation of their rights. These domestic enforcement mechanisms are more reliable for enforcement rather than international bodies which have little power to enforce their decisions. Consequently, national law is much more directly relevant when assessing obligations during a public health emergency.

Other than the IHR and defined right to health, international human rights also define various individual rights that public health measures must respect consistent with treaty obligations. Governments may issue lockdowns, quarantine orders, mask and vaccine mandates in response to a public health emergency, all of which can infringe on individual rights. For example, the right to health’s freedom from non-consensual medical treatment is in direct contradiction to vaccine mandates; the right of freedom of assembly and association would be extremely limited under stay-at-home orders; the right to privacy is at threat with mass public health surveillance and data collection. All of these public health measures have the potential to be abused, covertly limiting human rights, a reality observed by various countries around the world during the COVID-19 pandemic.

For instance, in Azerbaijan, authorities detained activists and journalists who criticized the government's pandemic response, using health restrictions as a pretense to suppress dissent. The Chinese government intensified surveillance, utilizing highly accurate facial recognition technology and mobile phone tracking to monitor citizens' movements, raising serious privacy concerns. Additionally, China’s strict “Zero Covid” policy resulted in instances where small children were separated from their parents after testing positive for COVID-19, requiring them to be isolated in hospitals alone.

3. Restructuring the World Health Organization

The WHO’s response capabilities and treaties were tested after the COVID-19 pandemic, revealing several critical shortcomings. One major issue was the delayed declaration of COVID-19 as a Public Health Emergency of International Concern (PHEIC), which hindered timely global mobilization of resources and containment measures. Additionally, they were initially hesitant to confirm human-to-human transmission of the virus, a delay that may have contributed to its rapid global spread. Furthermore, the WHO remained overly deferential to China, particularly concerning the transparency and accuracy of information shared about the origins of the virus and initial spread, undermining the credibility of the WHO as an independent source of evidence-based information.

A postmortem of the response led to negotiations between member states to reform coordination on public health emergencies. Negotiations on amending the International Health Regulations and creating a new Pandemic Agreement treaty were launched simultaneously in December 2021 by two working groups established by the WHA.

There are four key proposed revisions to the IHR (2005). The first is to formally define a pandemic and create a higher and more specific alert than the current PHEIC alert used. The second, and more contentious, is defining obligations on equitable access to vaccines, medications, medical equipment, and other health products. This was in direct response to the unequal sharing of vaccines between higher and lower-income countries during the COVID-19 pandemic. The rate of vaccinations administered per 100 people as of October 1, 2021 in high-income countries was 125.3 per 100, almost 30 times more than the 4.2 per 100 in low-income countries.

Additionally, provisions for financing IHR requirements have been proposed to help lower-income countries to implement the mandates as well as improving on existing financial structures to help support resource mobilization during pandemics. Finally, to improve on IHR compliance and implementation, a “State Parties Committee” would be established as a non-punitive enforcement mechanism and National IHR Authorities would ensure implementation within countries. The IHR amendments are complementary to the Pandemic Agreement which lays out other separate measures to strengthen global responses to pandemics.

Some provisions of the Pandemic Agreement, currently undergoing negotiations at the WHO, have been subject to intense scrutiny by nations, especially the United States, due to concerns about potentially increasing financial burdens and implications for intellectual property rights. The treaty creates a system to exchange pathogen genetic sequences rapidly to allow for the development of vaccines and drugs, but is contingent on pharmaceutical companies utilizing this information to “to set aside a dedicated percentage of production for equitable distribution during pandemics” according to the State Department. This so-called Pathogen Access and Benefit Sharing System or PABS stipulates that 10% of production must be available at no-cost and 10% at low-cost during pandemics, for a combined total of 20% of production at discounted rates in the name of equitable distribution. This mandate has raised concerns about the increased costs for producers even before the unspecified financial contributions they would have to make to support the program.

Article 11 of the Pandemic Agreement calls for potential waivers on intellectual property protections for pandemics under the authority of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This is a World Trade Organization (WTO) agreement that agrees WTO members to basic intellectual property (IP) rules and allows for waivers under extraordinary circumstances. Supporters argue this would allow an expansion of manufacturing capacity for pharmaceuticals, however, critics contend that waiving IP protections might reduce incentives for firms to create these life-saving treatments in the first place.

Overall, these provisions grant the WHO more power and responsibility during pandemics in an attempt to strengthen the rules-based health governance of pandemics. However, this approach overlooks the underlying issue with the WHO’s response, lack of political insulation and dependence on China. This raises questions about whether the United States should support a treaty without ensuring its national interests are safeguarded and confirming that the organization will operate in good-faith.

4. Conclusion

The COVID-19 pandemic underscored the importance of international legal obligations in addressing global health crises while exposing significant gaps in existing frameworks. Instruments like the International Health Regulations (IHR) establish foundational obligations for member states, including early detection, information sharing, and mitigation strategies. However, the non-binding nature of compliance mechanisms and the lack of enforcement have severely limited the effectiveness of these agreements. WHO’s challenges in timely response and political insulation highlight the need to clarify the WHO’s authority, strengthen enforcement provisions, and ensure greater transparency—reforms that could mitigate political pressures and promote equitable distribution of resources during pandemics.

As pandemics are predicted to become more frequent due to factors like climate change and urbanization, the need for a stronger legal framework and robust international cooperation is more urgent than ever. Member states and the WHO must prioritize reform efforts to address current shortcomings and bolster global health governance. The lessons of COVID-19 should inspire a renewed commitment to preparedness and collaboration, laying the foundation for a more resilient and equitable response to future pandemics.