IHR 2005 in the Coronavirus Pandemic: A Need for a New Instrument to Overcome Fragmentation?

Unprecedented Pandemic and Splintered Global Response

With 182 countries reporting 6,663,304 confirmed cases with 392,802 deaths (as of Jun. 6, 2020) and activating various national emergency measures, the outbreak of novel coronavirus in 2020 stands to be recorded as the worst global health disaster in recent history.

Amid unprecedented uncertainties swirling around almost all sectors of the global community, the COVID-19 pandemic has also raised complex legal issues, which require systematic analysis once the current crisis is brought under control. Most notably, global guidelines and detailed manuals for responding specifically to a pandemic are not readily available. The World Health Organization (WHO) plays a crucial role, but is largely confined to gathering statistics, disseminating information, and issuing recommendations, instead of serving in the role of a global coordinator liaising between international organizations and governments. As a consequence, almost everything is left to the discretion of each state, prompting unorganized, compartmentalized, and splintered responses. 

Some Asian countries, such as Singapore and South Korea, have coped with the pandemic more efficiently and effectively than others.[1] Their comparative success, however, has been made possible by going alone in a draconian way, through the fortification of their own national regulatory bubbles rather than by reference to a global action plan. Under the circumstances, these initial responses seem inevitable and are indeed effective as short-term measures. They, however, do not provide a sustainable solution, and such self-imposed segregation cannot last forever. Without steady but common progress towards shared objectives on a global level, it is merely a matter of time before the efforts to contain a public health crisis are compromised. Examples of individual countries' success in managing COVID-19, in fact, only underscore the importance of exploring a systemic approach to managing the pandemic on a global level.

In a sense, the current problem can be traced to the structure of the WHO's 2005 International Health Regulations (IHR 2005), which is the only binding international convention on the global public health with 193 contracting parties.[2] IHR 2005 acknowledges the fragmented nature of international law and different jurisdictions of other international organizations, but it stops there. It may have been an effective tool to cope with conventional disease outbreaks such as SARS (Severe Acute Respiratory Syndrome) in the early 2000s, but perhaps not against new outbreaks like COVID-19. After the current pandemic, a serious discussion to amend IHR 2005 or to adopt a new international legal instrument needs to be undertaken. 

The Fragmentation Problem in IHR 2005

IHR was first adopted in 1969, and then amended in 1973 and 1981. An extensive revision was made in 2005 in the aftermath of the spread of SARS. IHR 2005 was thus adopted by the Fifty-eighth World Health Assembly in May 2005. 

It is a lengthy document with 66 articles and 9 annexes. Most of the contents relate to capacity building, communication, and available national measures. For instance, there are various provisions dealing with the core capacities of states to detect, assess, notify, report, and respond to health risk events.[3] As for communication, there are provisions for notification to the WHO and a two-way dialogue procedure between states and the WHO.[4] A diagram with detailed checklists outlines such communication.[5] Through this communication process, the WHO can then determine the existence of a "public health emergency of international concern (PHEIC)" and issue recommendations.[6] As regards available national measures, IHR 2005 includes provisions regulating health measures at ports of entry, on arrival and departure,[7] and for travelers.[8] It also regulates health documents[9] and financial charges associated with national measures.[10]

Notably, the instrument does not contain provisions that could ensure meaningful cooperation and close coordination between states, between the WHO and states, and between the WHO and other international organizations ("intergovernmental organizations" in IHR 2005) in the specific context of a pandemic. Given the critical importance of global cooperation and coordination in coping with COVID-19, this absence of coordination mechanisms in IHR 2005 arguably looms large. While there are a couple of provisions to that effect, they are either shallow or merely repeat principles.[11] These provisions do not provide adequate response guidelines for states or the WHO during an emergency. 

Underscoring a siloed approach to health, IHR 2005 takes a restrictive approach to managing a pandemic. For instance, Article 44 imposes an obligation on states parties to collaborate, but that obligation only extends to health issues. Article 2 explains its "purpose and scope" to be "to prevent . . . the international spread of disease in ways that are . . . restricted to public health risks . . . " (emphasis added). IHR 2005 thus stipulates up front that it will only be applied to health issues. Article 56(4) also states that it does not "impair the rights of States Parties under any international agreement . . . to resort to the dispute settlement mechanisms of other intergovernmental organizations . . . ". Article 57 further adds that "the IHR and other relevant international agreements should be interpreted so as to be compatible" and that " . . . the IHR shall not affect the rights and obligations of any State Party deriving from other international agreements" (emphasis added). Article 3 also underscores states parties' adherence to U.N. Charter principles and respect for human rights. In short, IHR 2005 pronounces that: (i) other treaties and agreements are not affected by it, and (ii) states should abide by the norms and rules contained in other treaties and agreements. A typical fragmentation problem found in other realms of international law thus underpins IHR 2005 as well.

In addition, IHR 2005 Article 3(4) further underscores all states' sovereign right "to legislate and to implement . . . their health policies".[12] While an appropriate statement of sovereign discretion, it presumably confounds the states when, in a situation like a pandemic, they are compelled to deal with a wide range of potentially conflicting obligations under different treaties and agreements. The fragmentation problem, as presented in the context of IHR 2005, is not merely theoretical or academic, but practical and pressing.

Worse yet, IHR 2005 does not contain an effective dispute settlement mechanism. The states parties can resort to mediation, conciliation, or good offices, and then they can proceed to the Director-General for his or her brokered resolution.[13] An optional clause is also available for a state party to accept arbitration for its disputes.[14] Compared to sophisticated dispute settlement schemes in other instruments and organizations, the options here seem to be too unpredictable and unstructured to handle the magnitude of issues arising from a pandemic.

Exploring a Revision of IHR 2005

The COVID-19 outbreak has laid bare the fragmentation problem of international law. Consider some recent examples. As regards the quarantining of foreign nationals arriving at airports, IHR 2005 permits quarantines and non-intrusive medical examinations in global health crisis situations. When a quarantine escalates into detention, however, a different set of legal rules comes into the equation. The Vienna Convention on Consular Relations requires a detaining state to inform a consul of the national state of a foreigner and ensure communication between them.[15] Given the myriad different travel restrictions issued by countries, it is unclear which national quarantine actions have become international detention actions requiring consular notification.[16]

Export restrictions of medical items or daily hygiene essentials such as face masks have implications for trade rules. Genuine counter-pandemic measures can create exceptions to the General Agreement on Tariffs and Trade rules.[17] Even so, official pronouncements and transparency are needed; at the moment, few governments have adopted and implemented national trade restrictions in clear conformity with international trade law. 

As regards restrictions on regular flights or landings, the Convention on International Civil Aviation sets forth a "state of national emergency" exception,[18] which may justify some of the current restrictions. Again, the issue here is transparency and reasonableness, and some restrictions are claimed to be abrupt and disproportionate. A state can also request a diversion of an incoming aircraft to another airport for landing under IHR 2005,[19] but only if this ensures the flight's technical safety.[20] Unfortunately, non-conforming changes have sometimes been reported.

Exercising regulatory authority over cruise ships docked at ports have also sparked controversy: who should be in charge or responsible—a port state, a flag state, or the state of a passenger's nationality? While international law has long addressed this type of issue from the point of how to organize competing countries' overlapping jurisdiction, the COVID-19-infected cruise ship situation is rather distinct, as no state apparently wants to exercise jurisdiction to avoid triggering state responsibility.

These are just some examples. As the current crisis is still underway, more questions will arise. And yet, answers to these questions or even guidelines for states' actions are not readily available. IHR 2005, as mentioned above, is silent on these specific details. So are other treaties and agreements that seem to have overlapping jurisdiction on these issues. Asking states to abide by all applicable treaties is an easy request, but a tremendously difficult task to fulfil. How to sort out and bridge all the rules applicable in a pandemic in a comprehensive and systematic manner is of the utmost importance. In particular, how to orchestrate, prioritize, and hierarchize these overlapping norms should be decided in advance. 

Addressing such structural problems spanning over diverse sectors of international law would probably require a separate, comprehensive international convention. Adopting a new convention for a major overhaul, however, may well entail lengthy and difficult negotiations. If that is the case, a practical alternative in the interim would be to seek an amendment of IHR 2005 under Article 55. In a sense, as far as IHR 2005 is concerned, this may be a natural evolution: it is already intended to evolve over the years to keep up with the changing trends of global diseases.[21]

From the fragmentation perspective, the key to a prospective amendment of IHR 2005 is to systematize cooperation and coordination between the WHO and other international organizations, beyond a mere reference to a general obligation in Article 14, when a PHEIC is declared. For instance, the following provision could be inserted for this purpose:

[in Article 12]

5. Upon declaration of a public health emergency of international concern, the Director-General shall notify relevant intergovernmental organizations of the determination together with relevant factual information and rationale, and seek consultation with them, as appropriate, in issuing recommendations to States Parties in accordance with Article 15. When requested, the Director-General may issue to other intergovernmental organizations an opinion on the nature and urgency of the public health emergency of international concern. 

As regards IHR 2005's relationship with other international agreements, Article 57 now provides for the compatibility and non-effect principles in abstract. More reliable guidelines could be sought here as well by inserting new provisions into present Articles.[22]

These are just some initial suggestions to facilitate collective thinking. When the current situation settles down, a serious discussion is needed to consider amendments to IHR 2005 reflecting the present experience.

About the Author: Jaemin Lee is Professor of Law at the School of Law, Seoul National University.