Responses to the COVID-19 Crisis: The Exposed Limitations of the International Health Regulations

Written by Pedro A. Villarreal (PhD), Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, villarreal mpil.de

As the COVID-19 crisis continues to unfold, there is an increase in the adoption of measures by states restricting international travel and trade, mostly though not exclusively against China and its citizens. At the outset, two legal questions arise: what exactly is the role of the legal instrument devised for facing such crises, the International Health Regulations (IHR)? And what happens when potential breaches to its provisions occur? This blogpost focuses on the first question and concludes that the IHR leaves multiple unanswered points, particularly regarding the precise delimitation of its obligations. A separate post deals with the second question.

Tragic Recurrences: SARS and COVID-19

The IHR were approved at the 58th World Health Assembly of 2005 and entered into force in 2007. Though they are legally binding for states, they are not a treaty requiring domestic approval procedures. Their legal basis is provided by Article 21(a) of the Constitution of the World Health Organization (WHO), which allows the World Health Assembly to issue binding regulations in the matter of “sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease”. It was not the first time such regulations had been issued:  the 2005 IHR superseded a previous version, which had been approved in 1969 under the same legal grounds.

In a tragic recurrence, the main political engine for revising the IHR 2005 was the 2002-2003 Severe Acute Respiratory Syndrome (SARS) epidemic. It also had its epicenter in China (Guangdong Province), and the pathogen´s genus, coronavirus, is the same as COVID-19. But the emergence of novel diseases did not fall under the purview of the previous IHR of 1969. Instead, the list of regulated diseases included only cholera, plague and yellow fever at the end. For this reason, the need to design a new instrument became clear to the international community of states.

Other parallel elements between the SARS epidemic and the spread of COVID-19 are the need for prompt reporting and for sharing all relevant information related to the outbreak. During the 2002-2003 SARS epidemic, there were no direct obligations to report public health events caused by new pathogens to the WHO, nor to other states. Resultantly, though China had failed to inform the international community of the spread of the virus, there was no legal basis in which a claim could be based. Thus, the IHR 1969 had been effectively surpassed by new realities of an emerging disease.

For its time, the IHR 2005 were initially hailed as an innovation in light of several additions. Two standouts were: 1) the possibility, under Article 12, of the WHO Director-General to declare a public health emergency of international concern; and 2) the open texture of the list of notifiable diseases in its Annex 2. Both of them are intertwined in significant ways. 

The declaration of a public health emergency of international concern is meant to inform the community of states of an “extraordinary event” which, as defined by Article 1 IHR, “(i) [constitutes] a public health risk to other States through the international spread of disease and (ii) [potentially requires] a coordinated international response”. It became clear during the 2002-2003 SARS crisis that granting the WHO the mandate to alert the world of an ongoing emergency would be a step forward. That being said, declarations of public health emergencies of international concern do not lead to new obligations. It is meant to be an act of information. A more detailed explanation of the nature of such declarations can be found here.

As for the diseases falling under the purview of the IHR 2005, besides enlisting several pathogens known at that time, the wording stipulates that “any event of potential international public health concern… involving other events or diseases than those listed [herein]… shall be notified to WHO”. Moreover, Article 6 obliges States Parties to “notify WHO… within 24 hours”. Since no such wording, nor a similar one, were present in the IHR 1969’s strict scope, SARS fell outside of its application. Thanks to the IHR 2005 drafters’ foresight, this no longer occurred with COVID-19. The legal obligations are undoubtedly applicable. Yet a pending question is related to the extent to which acts currently taking place as a response to the crisis are under the aegis of some of the IHR’s provisions. The following subsection focuses on this matter.

Taking the IHR Seriously: The Need for Contextualizing

Article 2 of the IHR states that the purpose and scope of the IHR is to “to prevent, protect against, control and provide a public health response to the international spread of disease in ways... which avoid unnecessary interference with international traffic and trade.“ (emphasis added) The teleology therein should be employed to interpret all of its subsequent provisions. For instance, Article 43.1(a) allows for States Parties to implement health measures that “achieve the same or greater level of health protection than WHO recommendations”. The provision then specifies, in its last paragraph, that “such measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection”. Given the formulation, this would also imply that measures adopted by one government in a “purely” national setting, i.e. not involving international travel and trade, are outside the scope of the IHR 2005. Without delving deeper into this issue, it is debatable whether and how the IHR also regulates the restrictive measures imposed by China (and more recently, other countries such as Italy) against their own populations in settings where no international travel is at stake.  

Against this backdrop, determining whether measures “unnecessarily” interfere with international traffic and trade inevitably raises questions of legal interpretation. How can it be settled whether a specific measure is considered to be more restrictive than necessary? Can there be ex ante criteria meant to provide guidance for all potential future measures? And who gets to decide this on a case-by-case basis?

Recalling the first International Sanitary Conference of 1851, the goal was to aim at harmonizing measures for epidemic response. The concern was uncertainty due to the uneven imposition of measures, which were back then strictly of a non-pharmaceutical nature, such as quarantines and isolation. Fast-forward to the IHR 2005, and the goal of achieving harmonization still seems to be a far-fetched one, as evidenced by the wildly divergent measures being adopted for facing COVID-19.

At the same time, it would perhaps be too much to ask –and, as in the case of the IHR 1969, possibly counterproductive- for a legal instrument to very specifically enunciate all possible instances of its application. Expecting such a level of anticipation from lawmaking would inevitably end in frustration. Therefore, the object and scope of the IHR is formulated in a sufficiently vague manner in order to provide “elbow room” in decision-making during outbreaks.

Consequently, determining whether a response measure is or isn’t more restrictive than necessary will depend on the underlying context. Some measures, such as blanket bans of all travelers from a specific country, could always be seen as prima facie excessive. Others, such as mandatory quarantines of travelers coming from epidemic hotspots, or isolation of persons confirmed to be infected, are contingent upon existing medical and epidemiological justification. In the latter dimension, assessments by experts of the features of a particular disease should be the decisive element.

In order to formulate criteria for states regarding which measures go beyond what is necessary, the Director-General of the WHO has the power, under Article 15 IHR 2005, to issue temporary recommendations of, inter alia, “health measures [by States] to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic”. When doing so, Article 17 IHR 2005 states that the WHO Director-General “shall consider… health measures that, on the basis of a risk assessment appropriate to the circumstances, are not more restrictive of international traffic and trade and are not more intrusive to persons than reasonably available alternatives…” (emphasis added).

Taking the wording of Article 17 IHR into consideration, it can be argued that risk assessments in temporary recommendations need to take into account relevant circumstances, i.e. a contextual dimension, which may change from outbreak to outbreak, as well as from country to country. Therefore, circumstances relevant for risk assessments may consist not only of strictly-speaking medical data, rather also of socioeconomic determinants, such as the capacity of national health systems, sanitary conditions, disparity in access to healthcare, etc. Moreover, from a technical point of view, the socioeconomic context could also determine what type of restrictive measures are justified. Countries with a lower capacity for surveillance and response might not be able to meet higher thresholds of protection. The viability of temporary recommendations could face a stonewall if they are not sufficiently contextualized.    

In sum, fulfilling the goals set forth by Article 2 of the IHR requires contextualized assessments capable of indicating what the best course of action is. This could afterward be used to identify particular instances of (a) breach(es). The WHO Director-General’s recommendations (in light of Article 43 IHR) could fulfill such a role. But even if they take into account contextual circumstances, they do not single out case-by-case analysis of specific measures adopted by state A or B. Rather, they are formulated in a general matter. While following these recommendations certainly contributes to better framing the IHR’s broad obligations, it is still unclear whether their non-observance immediately leads to a breach, and how. This conundrum is addressed with more detail in the second blogpost.