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President Trump in a press conference has declared that the US is soon ending its relationship with the World Health Organization. With this move of the US, it seems that along with the COVID 19 pandemic the leading international health organization is also stuck in a political quandary. This blog first attempts to analyse the current political dilemma between the US and World Health Organization, then pointing out the shortcomings of International health regulation of the WHO and a way to combat the current and future pandemics efficiently.
The US vs the WHO & China
On 6 July 2020, the US government sent a letter to the secretary-general, notifying the withdrawal of the US from WHO. This step came after the US has temporarily halted funding to WHO and threatened to do so perpetually. The United States blamed china for not informing international organizations soon. President Trump has also said that he does not have faith in the statistics provided by china regarding the COVID 19 pandemic. The US Government has also accused WHO for being under the china’s under political influence, because of which the pandemic has spread at this huge scale. This led to more diplomatic tension between the two countries, amid the recent trade war, the failure of the G7 meeting to name the virus, and the situation of ‘extended security control’ over Hong Kong. This attempt of the United States of withdrawing its membership could affect the goal and purpose of the International Health Regulations (IHR), by undermining the international aim to combat this COVID 19 pandemic.
The limited Power of WHO and the International health regulations 2005
The International Health Regulations of 1969 did not cover the Severe Acute Respiratory Syndrome (SARS) epidemic of 2002-2003. Therefore, the IHR was altered in 2005, and the alteration came to effect in 2007 and a new instrument for coordinating responses to new international health concerns was created. Innovations such as supplying the World Health Organisation (WHO) to declare a Public Health Emergency of International Concern (PHEIC) through its Director-General, as provided in Article 12 was added into the revision of 2005. This provision aimed to inform the states of an ‘extraordinary event’ (as given under Article 1 of international health regime), that ‘constitute a public health risk to other states through the international spread of disease and to possibly necessitate an organized international response’. It became clear from the Severe Acute Respiratory Syndrome of 2002-2003 that providing WHO with the permission to alert the international community of health was a major course of action to restrain the crisis. However, coordination is needed between the states and the international community.
The power to display information is vested in the state as per Article 6 of IHR. WHO, though an international health organization, does not have the authority to congregate information and data. The World Health Organisation is to be notified by the states within 24 hours of a public health emergency of international concern within its provinces or territory. In addition to Article 7 of the IHR, which enables States to ‘provide the WHO with all appropriate public health information’ of ‘unexpected or irregular public health incident within its jurisdiction,’ which may trigger an international public health issue. Even though WHO is allowed to take into account reports from sources other than states, as provided in Article 9(1) of the IHR, the WHO is still required to request verification from relevant state parties of those reports, as per Article 10 of the IHR. As per Article 10(4) of the IHR the WHO could disregard state parties only in the situation of non-cooperation from the states. Breaching the IHR does not lead to sanctions and, there are no correlated direct legal consequences for ignoring them. Therefore, without the co-operation from the state, WHO is helpless. This is the main reason for the lack of WHO’s lack of enforcement mechanisms when the state breaches the IHR. However, Article 56 supplying the dispute settlement mechanism is the only solution for these disputes. Whenever there is a dispute between the WHO and states, they may either agree to negotiate or disputes are submitted to the Health Assembly. However, this provision has never been used. It is necessary to understand that without information, there can be no governance of disease outbreaks. The legal resources available and the organizational ability of the body do not allow for a complete process of data collection independent of the Member States. As a result, a widespread reluctance by the WHO Member States to exchange information would lead to a full shutdown of the system. It would, of course, but the entire international community at risk. It would, of course, but the entire international community at risk. Thus, the state must provide all the accurate information to protect the community from a global pandemic. Therefore, problems that cannot be resolved may occur if states accuse other states of failure.
Good Faith in International law
In the current mechanism where the monitoring of disease depends totally on states’ inclination to cooperate, it is vital to revisit the significance of good faith for international law. Good faith as a “general principle” constitutes a part of the sources of international law. Without good faith regimes provided by International health, regulations are non-functional. It is therefore important for states and WHO to have faith in each other. It is crucial not to underestimate the importance of good faith in the functioning of regimes such as IHR. Though, prospects of good faith cooperation can seem bogged down in trade wars, recurrent unilateral use of force and the general pushback against international institutions. But faced with specific challenges, such as the worldwide spread of disease, global instability could only be resolved in cases.
A way Forward
A review conference of states where states could meet regularly can be established addressing the issue of international monitoring mechanisms. This would help the international health regime in adapting to developments in global epidemiology, technology, science, and politics, as the current system does not provide for ways to test and monitor states regularly. Alternatively, better dispute settlement mechanisms can be set up that increase the involvement of professionals from various relevant fields. Some clear procedures and timelines can be set up to resolve disputes peacefully. To successfully combat global pandemics, the following gapes must be filled, in the upcoming World Health Assemblies.
ABOUT THE AUTHOR
Avani Malhotra is a third-year law student at the Institute of Law Nirma University.
In Content Picture Credit: ABC