Assessing the WHO’s COVID-19 Pandemic Response
Armin von Bogdandy, Pedro A. Villarreal
Max Planck Institute for Comparative Public Law and International Law
Germany
2020.07.16
1. The virus that was first reported in the Chinese city of Wuhan at the end of 2019, SARS-CoV-2, is now in all parts of the world. The number of persons with a confirmed infection currently stands at more than thirteen million globally, with the death toll up to almost half a million, and the figures rise every day. In order to face such a threat, numerous states have chosen to adopt restrictive measures on a massive scale. Geopolitical conflicts between major powers have only complicated the situation further. The current status of the multilateral order, in which international institutions are meant to play a major role, is heavily contested. One of these institutions is the World Health Organization (WHO). Its response to the pandemic highlights many of the already-existing gaps in global disease surveillance and response, as well as new ones.
2. Since its creation in 1948, the WHO has been tasked with an important global mandate. The legal powers entrusted to the organization by its Constitution are more extensive than that of most other similar institutions. Of course, it certainly cannot mandate states to impose so-called “lockdowns”, nor distribute hospital beds globally, or even prescribe medical treatments to COVID-19 patients. However, the WHO can issue binding regulations by majority vote of its World Health Assembly, the main decision-making body. In 2005, after a years-long revision process which gained momentum due to the SARS-CoV-1 crisis of 2002-2003, the Assembly approved the International Health Regulations (IHR). It is the main international law instrument aimed facing the cross-border spread of disease. The IHR represent the starting point for a rules-based response to global emergencies such as COVID-19 and provide an important example for the continuing relevance of international public authority.
Governance Through Framing
3. The WHO’s authority is not limited to rule making. Article 12 IHR allows the WHO Director-General to declare a public health emergency of international concern (PHEIC). The latter is defined in Article 1 as “an extraordinary event which is determined… (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response.” The WHO’s current Director-General, Tedros Adhanom Ghebreyesus, declared the spread of COVID-19 to be a PHEIC on 30 January, 2020. Legally speaking, it is the maximum level of alert possible. Later, on 11 March, 2020, the Director-General decided to deem the current crisis as a pandemic. With these two categories, the WHO provides a conceptual framing to the governments of its 194 Member States, allowing for a standardized background of the nature of the crisis.
4. The power to declare a PHEIC is certainly substantial. Even though declaring a PHEIC does not create new obligations for states, doing so can nevertheless raise the alertness of the international community towards a specific problem. Early warnings of a disease with the potential to spread globally can make a major difference in proper preparedness by Member States. Therefore, delays when doing so can carry negative consequences, since it may lead to the assumption that the international risk posed by a specific disease is not very dire.
5. PHEIC declarations are a complex exercise of authority, since the WHO Director-General must previously summon an Emergency Committee under Article 48 IHR. The Committee is composed of “experts in relevant fields” with regards to the subject matter of the IHR, such as the cross-border spread of disease. These experts are selected from a Roster devised by the WHO Director-General in consultation with Member States. Geographical diversity is required, including the presence of a representative of the affected state(s). But the Committee only gives advice, so the final decision to declare a PHEIC lies with the WHO Director-General.
6. At the beginning of the COVID-19 pandemic, an Emergency Committee first met on 22 January 2020. But the declaration of a PHEIC was only issued one week later, on 30 January. The reason is that the WHO Director-General did not put aside the Committee’s advice to delay the declaration, as he was entitled to do. The explanation is that WHO Director-Generals, as a matter of established practice, have always deferred to an Emergency Committee’s advice. Thus, the latter play a key role in pandemic decision-making.
7. Ironically, the Oval Office seems to subscribe to the idea of the WHO’s authority in its declarations. The Trump administration has targeted the organization as a culprit of the deficient national responses to the COVID-19 pandemic. Its accusations are a testament to the robust idea of the WHO’s authority. Arguments that the pandemic response would have been better “had the WHO reacted sooner” imply that its decisions to declare an emergency make a vital difference in the world.
Governance Through Recommendations
8. The WHO exercises authority not only via its general law-making and concrete qualifications, but also by making recommendations to its Members on how to face the spread of a disease. Articles 15, 16 and 18 of the IHR provide the general legal grounds, as well as a non-exhaustive list of measures which the organization may recommend. They range from the least restrictive, such as reviewing a person’s travel history, to more stringent ones, such as restrictions on entry or exit from entire areas affected by the virus, also known as cordons sanitaires.
9. The WHO cannot oblige states to adopt these measures. It is not the World Surgeon General. Nevertheless, the WHO’s recommendations play a powerful role when national authorities weigh in the range of available options, given the expertise-based authority of the WHO. Its acts mentioned above may steer national decision-making, which leads to an impact on the lives of potentially billions of persons. We label this an exercise of international public authority. The trust from and deference by the WHO’s addressees is a key component for such authority. It is therefore important that its recommendations are sound. If they are perceived as mistaken, it may have a negative impact upon the organization’s authority.
10. At times, the WHO’s recommendations may touch upon sensitive matters of human rights, as enshrined in both the International Covenant on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR). Measures of so-called “social distancing” stand out. Of particular concern are mandatory isolations and quarantines, which often lead to the confinement of persons either in government-designated places or at home. As defined in Article 1 IHR, isolation is applied to persons with a confirmed infection, whereas quarantines are for those without a diagnosed infection but who have been potentially exposed to the disease. Both of them are “classic” public health interventions. These measures impact upon the freedom of movement (Article 12 ICCPR), of assembly (Article 21 ICCPR) and, in their most stringent form, of personal freedom when conditions amount to detention (Article 9 ICCPR).
11. As in previous emergencies, the WHO has recommended the immediate isolation of infected persons, and quarantine of those who were in contact with them. Such mandatory quarantines and isolations are carried at the individual level, so every person is subjected to a specific risk assessment. By contrast, the imposition of more generalized “stay-at-home” orders have a more general dimension. The risk assessment no longer occurs at the individual level, rather encompassing entire communities, even whole countries, at once. Their use represents a much more severe restriction of liberties.
12. The COVID-19 pandemic has led to the widespread imposition of community-wide quarantines, leading to stringent human rights restrictions. Several states have decided to derogate human rights obligations in order to face the spread of the disease, and even more have declared states of emergency leading to the allocation of extraordinary powers by the heads of the executive. These may be troubling signs of a shift towards a more illiberal world order. Yet, on the other side of this equation, the obligations to protect life and human health may also require resorting to effective measures to stem the spread of the virus. This approach is confirmed by Article 12.2(c) of the ICESCR, which foresees an obligation by states to protect the population against the spread of epidemic diseases.
13. National authorities must therefore make decisions where several human rights are weighed against each other. In striking this balance, the WHO’s technical recommendations can make a big difference. This is confirmed by Article 26 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (“Siracusa Principles”). When deciding whether to limit or even derogate human rights, these principles refer explicitly to the WHO’s recommendations.
14. Consequently, a key element for upholding a liberal world order is related to how the WHO positions itself in the matter of highly restrictive measures. Against that background, it is important to stress that the WHO has, so far, not actively recommended imposing community-wide quarantines, but only individual isolations and quarantines. At the same time, the organization does not advise against community-wide restrictions either. It cautions in its guidelines that, should states choose to adopt them, they ought to undertake a careful analysis of multiple correlated elements, including human rights. Thus, national authorities still have to undertake an assessment of whether the measures are justified under their own legal systems. Indeed, it seems wise that the WHO does not claim to solve, by itself, the politically and also constitutionally delicate question of large scale public health and social measures.
15. The WHO has been, by contrast, far more specific on travel bans. When declaring a PHEIC on 30 January, 2020, WHO Director-General Tedros Ghebreyesus issued a recommendation of not imposing travel or trade restrictions. At the time, this mostly concerned measures against China. That recommendation had very limited following, as numerous states disregarded it. As reported by the International Organization for Migration, travel bans to foreign countries have been adopted in an unprecedented scale. Indeed, the Chinese government would later adopt travel restrictions of its own. On 1 May 2020, the WHO Director-General would then issue revised recommendations, in which the recommendations on travel were more nuanced. This also displays the organization’s responsiveness towards decisions made by its Member States.
16. The WHO’s original recommendation on travel bans was singled out by President Trump as counterproductive and an obstacle for an effective response. Yet recommendations are non-binding. The ultimate decision on whether to impose them or not rests upon national authorities. Nevertheless, it must be noted that states still have an obligation, under Article 43 IHR, to notify the WHO whenever they deviate from recommendations, as well as to provide the reasons therefore. A logic of complying and explaining is a well-known instrument of global governance. It is also worth underscoring that states’ reasons to deviate from the WHO’s advice need to be based on scientific evidence. The available guidelines already give hints at possible justifications for doing so.
17. Summing up, the final decision on which measures to adopt rest upon national authorities. Indeed, the existing multilateral world order does not allow for global institutions’ takeover of these sensitive functions of states. Instead, international public authority as that exercised by the WHO fulfill a necessary complementarity in the face of common challenges and goals.
The WHO’s Authority and the Hints of a Changing World Order
18. Even within its basic role as a technical forum for its Member States, the WHO currently faces major challenges. The President of the United States, Donald Trump, has accused the organization of choosing sides in the country’s competition against the Chinese regime. The deference alleged to have been shown by WHO Director-General Tedros Adhanom Ghebreyesus and other officials from the organization towards China have only strengthened this view. President Trump’s stance has culminated in the announcement of the country’s withdrawal from the organization, a matter which led to debates concerning the legal requirements of such an act.
19. There have been notable past instances of a more assertive stance by the WHO. Former Director-General Gro Harlem Brundtland’s more confrontational style when dealing with China during the SARS crisis in 2003 is a case in point. Nevertheless, praising governmental actions is not unprecedented in the history of the WHO. To the contrary, it is in line with a longstanding approach in which the organization heavily relies upon good relations with its Member States. Thus, in the current COVID-19 pandemic, the WHO has not only praised the Chinese government for its measures, rather also the Italian government and even the U.S. President’s own actions vis-à-vis the pandemic. Despite the praise, as mentioned above, the WHO has not actively recommended states to emulate the Chinese measures entailing massive restrictions on liberties. Whether other states do so is a choice that lies at the national level.
20. At this point, multiple views may be entertained as to whether the obligation to promptly and accurately notify reportable events are fulfilled under Article 6, paragraph 1, IHR within 24 hours of “all events which may constitute a public health emergency of international concern within its territory”. Furthermore, paragraph 2 of Article 6 IHR provides that states shall “communicate to WHO timely, accurate and sufficiently detailed public health information available to it on the notified event … including … laboratory results”. The formulation could include sharing genetic data of a pathogen. Other instruments such as the Convention on Biological Diversity, which in Article 15(5) states that, “Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party”, may point to a different direction. Moreover, the obligation can be seen as rising after there is a first assessment by national authorities. Other difficulties may encumber the proper identification of a threat, particularly due to a disease’s epidemiological features. These difficulties were attested in previous public health emergencies, such as the H1N1 influenza pandemic. Thus, future inquiries to verify which information was provided by relevant States, and when, may be helpful.
21. The group of information-sharing obligations foreseen by the IHR may be evaluated under the general rules of state responsibility, enshrined in the International Law Commission’s Articles on State Responsibility for Internationally Wrongful Acts. Article 31 sets out the “obligation to make full reparation for the injury caused by the internationally wrongful act”. Breaching the obligations to notify the WHO could lead to international responsibility. However, as explained by David Fidler, demanding reparations for such responsibility needs to be coupled with proving that the delay was causal for any damage claimed. This causality does not seem to explain “so much death” suffered in the United States, as its President claims. President Trump has not provided evidence of a link between the WHO’s and China’s handling of the pandemic, and the United States’ own belated response to the spread of the virus. The latter’s initial reaction to COVID-19 took place only in March, much later than the declaration of a PHEIC of 30 January 2020 by the WHO Director-General. It is worth underscoring that a PHEIC is the maximum level of alert provided in the IHR. By contrast, countries such as Italy reacted immediately to the latter, by issuing an emergency declaration the very next day.
22. Article 56 IHR provides the possibility of resorting to dispute settlement between Member States whenever there are disagreements on the fulfillment of legal obligations, such as the one just discussed. Ensuing disputes could be settled under the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes, but only if the respondent state has affirmatively consented to it. Such an arbitration has never occurred in the IHR’s history. In light of the current reluctance by both China and the United States to resort to international adjudication altogether, pursuing this avenue is mired with difficulties.
23. These conflicts are part of a broader pattern. It can be argued that the WHO is currently caught in a political battleground between the United States and China. This could be one explanation for President Trump’s accusations. Moreover, this dimension of geopolitical competition might also help explain Chinese authorities’ portrayal of their public health measures as efficient and a role model for other countries.
24. Since so far there has been no recourse to international judicial dispute settlement as a means to settle disagreements, President Trump has relied upon a punitive approach. The resulting gap in case of the United States’ full withdrawal from the WHO could certainly lead to major constraints in the organization’s funding. Yet it would not be the first time in which finances are used to punish the organization for its perceived politicization either. Already in past decades, the United States, by far the biggest contributor, much reduced its financial commitments. One consequence has been the growing presence of non-state actors in the arena of global health governance. Indeed, the second biggest donor is, until recently, not even a state, but rather an NGO from the United States: The Bill and Melinda Gates Foundation. Future contributions by the Chinese government could certainly make up for the United States’ absence.
25. Still, it remains an open question on whether and to what extent the shifts in the multilateral world order do sway the WHO’s policies one way or the other. But an overarching crisis because of the United States’ withdrawal is likely to impact the WHO’s authority. The regulatory framework of the IHR would be in big peril. In so far as pandemic surveillance and response is a problem of global concern, the whole world might be paying the price.
Conclusion
26. Even though the WHO is a technical organization, it cannot avoid playing a political role, given the importance of its mandate and the background of regime competition in which it is embedded. However, this should not prevent it from fulfilling its technical functions. The organization’s role in the current multilateral world order should be to advance the global agenda on how to better protect against pandemics in the future. Therefore, the WHO should, among other things, use the legal means at its disposal to gather reliable figures on how many people have succumbed to the disease in different countries. Here, it would also play a productive role in the competition by states to portray their responses as the most effective. Every regime has great interest in portraying itself as successful, hence there is an evident incentive to downplay the particular numbers of fatalities. Of course, this is more difficult in a democratic regime where the flow of information is less centralized.
27. As argued previously, Articles 9 and 10 IHR can allow the WHO to fulfil its mandate amidst the adverse political environment. The accuracy of information provided by Member States is a core concern for disease surveillance and response. As Article 9 allows the WHO to take into account “other reports”, information from other sources such as social media can allow for verifying the validity of official data. In case of discrepancies, the WHO could ask national authorities for clarification. Article 10 IHR provides additional legal tools, since its paragraph 4 foresees that the WHO can share information from other reports with the international community if the affected state proves to be uncooperative. In this process, the WHO plays a mostly technical, but, at the same time, truly crucial role in the heated discussion on regime competition and could show its independence from the influence by powerful states.
28. There is, of course, a possible trade-off if the WHO openly confronts the Chinese government. If the latter refuses to share information essential for fighting the pandemic, it would put the whole world at a higher risk, increasing a blind spot. But the lack of cooperation would also be detrimental to the Chinese government’s image because it would show how unreliable it is regarding factual issues, and would cast doubt on any portrayal of national public health measures as successful.
29. Moreover, the WHO’s own actions in the handling of the pandemic are subjected to a more thorough scrutiny. On 9 July, 2020, the WHO Director-General announced the creation of an Independent Panel for Pandemic Preparedness and Response (IPPR). The creation of this body follows a consensus on the need to undertake deeper fact-finding inquiries, which was consolidated at the recent 73rd World Health Assembly on 18-19 May in Geneva. The panel’s chairs were chosen, namely former Prime Minister of New Zealand Helen Clark, and former President of Liberia Ellen Johnson Sirleaf. At the moment of writing, the panel’s terms of reference are yet to be formulated. It may eventually consist of reviewing both the WHO’s initial responses, as well as delays in notification by Member States. Ultimately, deeper insights on the global system of disease surveillance’s shortcomings are a matter of global concern.
30. In general, it can be argued that the WHO’s authority has not broken down during the ongoing pandemic. Even though states blatantly disregarded several recommendations, this does not automatically lead to the conclusion that the applicable norms are irrelevant. Instead, the need for a rules-based response to pandemics only became clearer. The COVID-19 debacle is a reminder of why ensuring that countries are able and willing to promptly report the emergence of new diseases is a global public good. As the task at hand is beyond the efforts of any individual Member State, having an international institution with solid authority is essential.
31. In sum, it seems safe to assume that, without the legal framework provided by the WHO’s authority, the various responses made by the many countries facing the pressure caused by the pandemic would be even more diverse and disruptive. This, in turn, would inevitably have a negative impact on billions of individuals. The risk is even more dramatic in lower-income countries, which have even fewer resources to confront the pandemic successfully. We should keep in mind that the WHO’s mandate does not only include the United States and China, but other 192 Member States with possibly a greater interest than them in an authoritative institution.
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This is a summarized version of a longer research text available at the MPIL Research Paper Series, available here.
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Notes about the authors:
Armin von Bogdandy is director at the Max Planck Institute for Comparative Public Law and International Law and professor at the Goethe-University Frankfurt. He has been the president of the OECD Nuclear Energy Tribunal, member of the German Science Council and lecturer at the Xiamen Academy of International Law. He is the recipient of the Leibniz Prize (2014), the Premio “Hector Fix Zamudio” (2015), the “Mazo” (gavel) of the Interamerican Court of Human Rights (2015), and the prize for outstanding scientific achievements by the Berlin-Brandenburg Academy of Sciences (2008).
Pedro A. Villarreal is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law. He is co-manager of the project “International Health Governance”. His monograph titled “Pandemics and Law: A Global Governance Perspective”, published in Spanish, was awarded the Marcos Kaplan Prize in 2017 for the best doctoral dissertation in law and social sciences at the National Autonomous University of Mexico (UNAM).