Capacity-Building, International Cooperation, and COVID-19

Introduction

The coronavirus disease (COVID-19) has made it apparent that states have different capacities to detect, effectively respond to, and manage highly infectious diseases. Concomitantly, the resources necessary to support robust health systems are distributed inequitably, which inevitably places greater stress on societies with the most vulnerable health infrastructure. In 2005, the World Health Organization (WHO) found that health capacities were nowhere near "a path to timely implementation worldwide."[1] By 2013, well before the current COVID-19 pandemic, studies found that no African state had fully implemented their core health capacity requirements under the International Health Regulations of 2005.[2] This Insight analyzes the international obligations of capacity-building and cooperation in light of COVID-19. Reflecting on these obligations is especially important given the Trump Administration's formal notification to the United Nations of its plan to withdraw from the WHO.

COVID-19 has made it abundantly clear that highly infectious diseases pose severe risks for the entire world and that health systems globally are woefully ill-equipped. More recently, the Global Health Security Index, which assesses countries' abilities and preparedness to respond to pandemics like COVID-19, found in its 2019 report that globally the average country preparedness score was 40.2 out of a possible 100. Many of the countries the Index ranked as "least prepared" are in Africa, with Somalia (16.6) and Equatorial Guinea (16.2) appearing at the very bottom.  

The lack of capacity especially visible in African countries and elsewhere in the Global South is in part due to historical vulnerability from slavery, colonialism, neocolonialism, political instability, and conflict, as well as neoliberal reform policies like structural adjustment. For example, austerity measures and reform policies imposed by international financial institutions, which limited health spending and investment in the health sector, exacerbated weak healthcare infrastructure across the African continent.[3]

Even states that the Index predicted to have comparatively robust health capacity find their health systems overwhelmed during the COVID-19 pandemic. For example, in the United States and the United Kingdom, healthcare workers lack adequate access to personal protective equipment and the health system in the United States especially has insufficient hospital beds to accommodate the growing number that need them.[4] In sharp contrast, places like South Korea and Taiwan have provided rapid and effective responses, in part because of their recent experience with previous outbreaks and their early ramping up of testing and contact-tracing. 

COVID-19 & Capacity 

The primary regime for regulating disease is global public health law. The main governing body of this regime is the World Health Assembly.[5] Member states provided the World Health Assembly with significant powers including the authority to adopt treaties addressing any matter within its competence[6] and to adopt regulations in five specific areas.[7] Unusually under international law, the Health Assembly's resolutions are binding on all member states unless they affirmatively opt out. 

Global public health law requires states to develop their health capacity. For example, the International Health Regulations of 2005 require that each state party to the WHO "develop, strengthen, and maintain . . . the capacity to detect, assess, notify, and report" certain diseases within five years of the regulations' entry into force.[8] States unable to meet their capacity obligations must show good cause and, in exceptional circumstances, are to receive an extension of up to four years.[9] States are to develop capacities by "utiliz[ing] existing national structures and resources to meet their core capacity requirements."[10] States must also develop specific public health response capacities under the Regulations. This includes domestic capacity to rapidly determine the control measures required to prevent the domestic and international spread of disease; to provide support through specialized staff, laboratory analysis of samples, and logistical assistance; to provide an efficient means of communication with relevant stakeholders; and to establish, operate, and maintain a public health emergency response plan for situations like the COVID-19 pandemic.[11]

Ideally, the affected state would have full capacity to respond to infectious diseases. Yet, even in circumstances where states lack capacity to fight highly infectious diseases, as witnessed with the 2014-2015 Ebola epidemic in the West African sub-region,[12] states still have relevant obligations under human rights law. These include protections against the arbitrary deprivation of life[13] and the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. States' obligations include monitoring the nonrealization of the right to health and devising strategies to promote the right,[14] as well as protecting persons within their jurisdictions from infringement of the right to health by third parties.[15]

COVID-19 is forcefully making the case for differentiating responsibility among states for epidemics and pandemics based on capacity.[16] Relative capacity to act, as opposed to absolute capacity, will be crucial in determining responsibility. Indeed, it may be more socially desirable and legitimate for actors that have high capabilities (but are not necessarily the most capable globally) to act to remedy the harm caused by an epidemic or pandemic disease. Otherwise, requiring action from only the most capable actors could reify geopolitical hierarchies in ways that allow for powerful and more well-resourced actors to exercise oversight over programs aimed at combatting highly infectious diseases. 

COVID-19 & International Cooperation 

The United Nations Charter also prioritizes cooperation in situations like the COVID-19 pandemic. Under Article 56 of the Charter, members are "to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." Article 55 provides that the United Nations shall promote "solutions of international economic, social, health, and related problems; and international cultural and educational cooperation." Article 55 also provides in relevant part that the United Nations should promote higher standards of living and conditions of economic and social progress and development as well as universal respect for and observance of human rights. These provisions together suggest that the Charter obligates states to cooperate with the United Nations and other actors to prevent, detect, and arrest highly infectious diseases like COVID-19. Some commentators are of the view that the Charter does not legally empower the United Nations to force member states to provide assistance.[17] Yet, that states are not subject to compulsion does not mean that they do not have a responsibility to cooperate.

Similarly, the International Health Regulations of 2005 also require state parties to cooperate to help build health capacities.[18] Yet, the Regulations do not articulate how this is to work in practice. This could take the form of research and information sharing, technical assistance (training and the provision of expertise), and financial and material assistance through special funds with contributions from members to help defray costs. Private foundations and public-private partnerships would also be instrumental in capacity-building efforts. Such initiatives are especially needed where recipient states lack the infrastructure necessary to address epidemics or pandemics domestically and are unable to fulfill their core capacities under the International Health Regulations.

The international responsibility of a state or international organization to protect people not under the state or organization's territorial jurisdiction from gross violations of human rights during pandemics is triggered by an objective assessment of whether the national authorities of that jurisdiction have failed to afford the required protection. Whether that failure is due to the government's incapacity or unwillingness is immaterial. International action to prevent, treat, and control communicable diseases by actors other than the affected state, where required, is based on a subsidiary duty in circumstances where the primary duty bearer lacks capacity or is unwilling to fulfill its obligations.[19] This secondary duty is best understood as complementary to those of the rightsholder's own state because any other reading would render meaningless the duty to cooperate to realize socioeconomic rights. 

Indeed, whether a state has taken all adequate and reasonable steps towards the progressive realization of the right to health would be based, in part, on whether the affected state had sought international cooperation to assist with its efforts to protect this right. Further, Articles 2(1) and 22–23 of the International Covenant on Economic Social and Cultural Rights (ICESCR) stipulates that it is the obligation of all state parties, especially those with economic and technical capacity, to take steps towards the full realization of rights in the Covenant individually and through international assistance and cooperation, including through the adoption of treaties and recommendations, as well as the provision of technical assistance. [20]  

Yet, it is important to protect actors from unwarranted or pretextual sovereignty incursions under the guise of COVID-19 or other pandemics. Accordingly, state consent should be required for the provision of external assistance, with a stipulation that states cannot withhold consent without good cause, as envisioned in the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters.[21] Similarly, recipient states should have the "primary role in the direction, control, coordination, and supervision of" all COVID-19 relief assistance.[22] This would assist in formulating contextually appropriate responses to the pandemic. 

The Committee responsible for interpreting the ICESCR has emphasized in its commentary that "State parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to health."[23] It asserts that states have an obligation, subject to the availability of resources, to "facilitate access to essential health facilities, goods and services in other countries, wherever possible, and [to] provide the necessary aid when required."[24] Additionally, this Committee has found that states are required under international law, "to cooperate in providing disaster relief and humanitarian assistance in times of emergency."[25] It has also found that states should prioritize the provision of international medical aid, distribution and management of resources, and financial aid to the "most vulnerable or marginalized groups of the population."[26] The Committee has stressed in its commentary that because some diseases are "easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem."[27]

The question arises how to determine whether an actor has failed to cooperate. First, consideration should be given to whether that actor had the capacity to fulfill this obligation. If the external actor had the capacity to do so and failed to cooperate, then it should be held responsible for this omission. A clear example is the Trump Administration's recent announcement of its intention to cut funding to the WHO in the middle of the organization's coordination of the global response to the COVID-19 pandemic. The Administration  formally notified the United Nations that the United States plans to withdraw from the WHO. Any withdrawal would not be effective until July 6, 2021. If the withdrawal from the WHO is not reversed, this  would likely result in dire consequences. The United States customarily provides millions of dollars per year in assessed and voluntary contributions to the WHO's budget including for outbreak and crisis response. The current administration may be attempting to shift the focus from its inadequate domestic response, which has included initially downplaying the severity of the pandemic in the United States, and subsequently failing to institute an effective mobilization of testing capacity and contact-tracing resources to contain the virus's spread. The WHO can of course be subject to criticism. However, defunding multilateral initiatives during a global health emergency endangers lives. 

Conclusion

The COVID-19 pandemic has shown that protection from highly infectious diseases is a public good that is not sufficiently under the control of any one state. The pandemic has also strikingly illustrated how some states have eluded the global health regime with entirely uncoordinated country-specific measures. While international cooperation can be undermined by a single uncooperative actor, the political appetite for international cooperation and assistance may also increase considering the widespread ramifications of the pandemic. The cost to do so would be minimal. For example, some estimates indicate that a mere 0.1 percent of the gross national income of 66 high-income economies would be needed to meet the core obligations of the right to health and comply with obligations under the International Health Regulations.[28] The COVID-19 pandemic and the responses to halt its spread have already created a world which few had previously envisioned. Perhaps it will be more possible going forward to harness this potential to create a more just world order. 

About the Author: Matiangai Sirleaf is a Professor of Law at the University of Maryland School of Law. Her expertise includes public international law, global public health law and international human rights law.