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The WHO’s Failures Are a Red Herring. A 2005 Pact Is the Real Problem.

The WHO’s Failures Are a Red Herring. A 2005 Pact Is the Real Problem.

WHO director general Tedros Adhanom Ghebreyesus at a press conference after an Emergency Committee meeting in May 2018. Photo: Reuters/Denis Balibouse.

The WHO has come under widespread scrutiny for a few valid and many invalid reasons. The major criticisms that have been levelled against the organisation are:

1. The WHO is overtly China-centric and is taking a softer approach towards China’s delay in acting on the new coronavirus epidemic

2. It has failed to coordinate the procurement of personal protection equipment, diagnostic kits and other medical products

3. It has been reluctant to recommend a ban on international travel and trade, while passively supporting ‘stay at home’

4. It didn’t declare that the virus’s spread was a ‘public health emergency of international concern’ soon enough.

Scholars have also expressed doubts about the WHO’s ability to coordinate its member nations, and US President Donald Trump has since decided to freeze his country’s funds for the WHO.

However, where there is a legitimate concern with the WHO, the organisation itself may not be to blame as much as the International Health Regulations (IHR) 2005. Specifically, the WHO’s member states should take responsibility for diluting the purpose of IHR 2005 and thus weakening the WHO itself.

Throughout its history, the WHO has used its powers in matured fashion, giving importance to science over diplomacy. Article 2 of the WHO’s constitution lists 22 functions, the last of which empowers the WHO to take “all necessary actions” to attain objectives, which is the highest possible level of healthcare. Article 2 also requires the WHO “to stimulate and advance work to eradicate epidemic, endemic and other diseases”. Not many international institutions have such an open mandate from their member states.

The WHO’s operative mandate on epidemic disease outbreaks like COVID-19 comes from the IHR 2005. Born of global consensus after the SARS outbreak in 2003, the IHR 2005 is a legally binding instrument under Article 22 of the WHO’s constitution. It replaced the IHR 1969 and established a new set of rules that require member states to improve surveillance and reporting mechanisms for public health emergencies and regulate the implementation of health measures. The IHR 2005 also authorises the WHO’s director-general to declare a ‘public health emergency of international concern’ (PHEIC) after consulting with the Emergency Committee and state parties in which the event is occurring.

Once a PHEIC has been declared, the WHO can issue time-limited health measures as temporary recommendations under Article 15 of IHR 2005, and which the member states are bound to follow.

Response to COVID-19

Now, the major criticisms against the WHO – about the delay in announcing a PHEIC and the inconsistency between the ‘stay at home’ measures and the reluctance to impose a travel ban – are both due to a lack of normative clarity in the IHR 2005.

The definition of a PHEIC in Article 1 of the regulations identifies only two characteristic features: international spread of the disease and need for an internationally coordinated response. However, Article 12 and Annex 2 of the IHR account for the risk of interference with international traffic as an important part of determining a PHEIC. So the central concern is what has to be taken into consideration while designing suitable health measures.

Article 12 of the IHR requires the director-general to consider the information provided by the state, to apply scientific principles in assessing the available evidence, to assess the risk to human health and of international spread of the disease, and the risk of interference with international traffic – before announcing a PHEIC. In this process, the director-general is required to use the decision instrument contained in Annex 2 and also consult the Emergency Committee.

So the issue has three important factors: the Emergency Committee’s role, the adequacy of evidence, and the final analysis. The committee constituted for COVID-19 has 15 members. All but two states have only one representative; Singapore and Thailand have two each. But the point is that no one nation can exercise disproportionate influence over the committee’s decision.

Their consultative process is also among the more dynamic ones at the WHO, transforming a scientific exercise into a political one. And even if an affected state and the committee denies a PHEIC status, the director-general is empowered to overrule them under Articles 12 and 49 of the IHR.

But in the case of COVID-19, the director-general and the Emergency Committee were in agreement. And since the committee was considering the matter, the director-general would have been reluctant to take an independent call. Note that the WHO took an additional 30 days from the day of intimation to declare the novel coronavirus outbreak a PHEIC.

On the question of adequacy of evidence: the Emergency Committee can’t make precautionary decisions. Instead, they need to be based on evidence submitted by affected member states and from some other sources. According to the committee, China shared sufficient data and relevant information. The WHO officials even noted in a media briefing, “China’s cooperation is at unprecedented levels in the history of PHEIC responses.” But to quench all criticism, the committee should share the minutes of its meeting.

The third factor is the risk to public health, international spread of disease and interference with traffic, especially the last one. In the statement in which the WHO announced a PHEIC, the committee’s members expressed wariness about member states taking additional non-recommended measures, thus disturbing international trade and traffic. The committee’s chairperson said that a PHEIC declaration allows the WHO to question its member states about such measures, in line with the PHEIC’s principal policy objective according to the IHR 2005: to be “avoiding unnecessary interference with international trade and traffic”.

This also means the WHO will not declare a PHEIC if such declarations may needlessly interfere with international traffic and trade, despite the fact that the disease is a pandemic and an internationally coordinated response is necessary. The director-general and the Emergency Committee may believe that a PHEIC declaration can trigger panic and disturb the global economy, and hold back. Such a thing happened with the Ebola outbreak.

Article 2 of the IHR 2005, which explains the purpose and scope of the IHR, validates this approach. While the predecessors to IHR 2005 – ISR 1951 and IHR 1969 – were also concerned with minimising interference with international traffic, they had limited presence in the text itself; the word ‘trade’ itself was used only once in both documents combined. The IHR 2005 reversed this: Articles 15 and 16 deal with temporary measures and standing recommendations respectively, and Article 17 discusses factors to be considered before adopting these recommendations, and mandates the director-general once again to avoid unnecessary interference with traffic and trade.

Article 43, which deals with member-states’ capacity to adopt measures beyond the WHO’s recommendations, is also limited by a similar clause.

The International Health Regulations of 2005 are a classic example of cementing the global rule of transnational capital in the name of public healthcare.

The WHO can’t officially move away from the mandate of its member states, which in turn has placed trade interests before public health concerns. The only way out now is to clarify the normative intent and empower the WHO to make evidence-based decisions free from political interference. That is, instead of attacking the WHO, we should focus on revamping the IHR 2005.

Nithin Ramakrishnan is an assistant professor of international law at the Chinmaya Vishwavidyapeeth (deemed to be university), Ernakulam. He is a scholar of traditional international law and closely follows the WHO and the IHR implementation.

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