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CHINA LEGAL SCIENCE 2020年第5期|“新冠”疫情下《国际卫生条例》面对的挑战及改革对策
日期:20-10-15 来源: 作者:zzs

THE CHALLENGE AND APPROACH OF THE INTERNATIONAL HEALTH REGULATIONS UNDER THE COVID-19


Wei Qingpo


TABLE OF CONTENTS


I. LITERATURE REVIEW AND THE RAISING OF PROBLEM


A. Literature Review

B. The Raising of Problem


II. INTERNAL LOGIC OF THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS OF 2005


A. Establishing the Securitization Framework to Depoliticize

B. Expanding Functions to Enhance the Effectiveness of the Governance System

C. The International Health Regulations Gives Member States ‘Autonomy’ in Compliance


III. REALISTIC DILEMMA OF THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS


A. There Are Differences between the Securitization Framework and the Specific Implementation Path

B. Lack of Legal Accountability Mechanism Leads to Dysfunction

C. The Discretion of Member States Reduces the Authority and Effectiveness of the Mechanism


IV. REFORM PATH FOR THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS OF 2005


A. Establishing a Risk Framework to Coordinate Global Health Governance

B. Improving Normative Authority to Enhance the Effectiveness of Vertical Governance

C. Enhancing the Compliance Capacity of Member States


V.  CONCLUSION



The World Health Organization has established a securitization framework to depoliticize with the self-positioning of a specialized organization. This concept is reflected in the International Health Regulations as striving to seek a balance between national sovereignty and international interests, and implementing disease-oriented policies to enforce its jurisdiction. In the face of the novel coronavirus epidemic, the prevention mechanism of the International Health Regulations amended based on SARS does not work, and exposes many problems in compliance logic, procedure and content. On the basis of analyzing the complex system and internal tension of the global disease surveillance and control system, combined with the characteristics of the international public health governance framework system, it is proposed that a risk framework should be established to incorporate political factors to bridge the inherent contradictions of system construction. Improving the normative authority to enhance the effectiveness of the vertical governance of the International Health Regulations, including advancing the normative authority of the public health emergency of international concern mechanism, clearly declaring consideration factors and conditions of the public health emergency of international concern, and improving the dispute settlement mechanism to enhance the willingness of member states to comply. Helping the member states to build compliance capacity, linking it with indicators and financing, strengthening the compliance capacity and effectiveness of member states through rigorous evaluation, and thereby enhancing and improving capacity and system of the international community to respond to pandemics.

Major historical events in history can cause the evolution of national conduct norms, and promote the development of international law. The outbreak of cholera in the 1930s and 1940s prompted European countries to break through geopolitical boundaries and began to explore multilateral cooperation mechanisms for the prevention and treatment of infectious diseases. In view of the fact that infectious disease does not distinguish between geopolitical boundaries, there is no concept of national sovereignty in the microbial world, and infectious disease is a common threat to mankind and constitutes an important subject in the international law. Among the many related treaties and agreements, the International Health Regulations of 2005 (hereinafter referred to as the IHR of 2005) amended by the World Health Organization (WHO) is the basis for providing guidance and assistance for member states, coordinating vaccine, diagnosis and antiviral drug research, and formulating international countermeasures in a standardized manner. This is a set of binding regulations and is also the earliest multilateral legal mechanism focusing on global surveillance, prevention and control of infectious diseases.

The novel coronavirus pneumonia epidemic (hereinafter referred to as the coronavirus epidemic) broke out at the end of 2019 continues raging around the world, which has a major impact on the society, politics and economy of every state. Facing the most severe public health crisis the world has suffered since the Second World War, the prevention mechanism established by the IHR of 2005 has not achieved the expected results, especially the recommendations issued by the WHO have not been universally adopted by member states, which exposes some urgent problems in the international public health governance system. In the context of the current changes in the international law, the IHR of 2005 must solve the dilemma and challenge of global public health governance brought by the coronavirus epidemic, and improve the role of international law in infectious diseases control from the structural and substantive aspects.


I. LITERATURE REVIEW AND THE RAISING OF PROBLEM


From the prehistoric times when human beings began to conquer nature, to the subsequent national migration, victory or defeat in wars, social prosperity and decay, the transformation of industries and the development of civilization, they were all accompanied by the imprint of infectious diseases. Looking back to the history of international public health governance, international law has played an important role in the prevention and control of infectious diseases at the national, international and global levels.


A. Literature Review


International cooperation is an important aspect of controlling infectious diseases. The Peace of Westphalia of 1648 lays the foundation for the evolution of the concept of nation-state and opens the prelude of the development of modern international law. For a long time, the international community has mainly adopted the Westphalian model in the control of infectious diseases, seeking a balance between national sovereignty and public health governance. The retrospection of the governance model is conducive to summarizing and sorting out the functions of international law, and provides a legal basis for improving the compliance and implementation of the IHR of 2005.

1. The Governance Mechanism of Westphalian Model. — Before the mid-19th Century, the threat of infectious diseases was mainly treated as an internal issue of a state and did not need the cooperation with other states. In order to cope with cholera, European countries formulated diplomatic procedures and international legal rules for the prevention and treatment of infectious diseases in 1851. Over the next century, states began to join this international governance mechanism aimed at solving the increasingly serious problem of cross-border microbial transmission. During this period, naturally occurring infectious disease was dominant, national sovereignty was emphasized in terms of control, and the sources were regarded as exogenous threats to the state, including the imported risks caused by trade and transportation, and the economic burden caused by the quarantine measures taken by trading partners. The governance system formulated during this period conformed to the structure and principle of the Westphalian system, and the IHR reached also reflected the horizontal governance method for the international spread of infectious diseases. State is the governing unit, and the rules formulated are designed to reduce international trade delays and frictions caused by epidemic prevention measures.

At this time, the international governance model of infectious diseases also reflects the non-intervention principle of the Westphalian system. The governance mechanism focuses on managing interactions among states, including trade and travel, rather than public health conditions and problems existing in the sovereign territory of the state. Therefore, the rule does not penetrate the internal governance of the state, nor does it require the state to make improvements in the control of infectious diseases, which means that how to organize and implement public health on its own territory for the state is not infectious disease diplomacy or infectious disease control related international law subject, so as not to override the sovereignty principle and the principle of non-interference in the affairs of other states. It can be seen that the IHR amended by the WHO in 1951 adopts the principle and structure of Westphalian public health governance from its target focus on the prevention and control of cross-border infectious diseases and the scope of governance, aiming to reduce the friction between the exercise of public health sovereignty and international trade and travel.

However, the IHR of 1951 based on the Westphalian model fails to fully achieve the goal of preventing the spread of international diseases to the greatest extent without disrupting world traffic, because member states are worried about reporting the epidemic and subsequent economic losses, they choose not to report the epidemic to the WHO. In addition to the non-compliance, the IHR of 1951 is limited to plague diseases that have occurred in the past, and has little relevance to the urgent global prevention and control of infectious diseases, making it impossible to try to solve diseases outside its scope. When smallpox was eradicated in the 1970s, the amended IHR of 1981 only left a list of cholera, plague and yellow fever, and during that period, although AIDS was raging around the world, it could not be applied to the IHR of 1981 since it was not on the list, which led to its apparent failure in the horizontal governance model.

2. The Governance Mechanism of Post-Westphalian Model. — Different from the cross-border infection control strategy, vertical governance idea of the WHO within member states is to eliminate infectious diseases and reduce the possibility of exported cases. During more than 50 years after the establishment, one of the WHO’s strategic emphases is to improve the public health of developing countries, and the cooperation mainly involves vertical public health strategies, with loan assistance to help the health authorities of developing countries prevent and control diseases from the source. This public health governance paradigm of the universal health program that focuses on human rights protection shows that the principle of non-intervention in the Westphalian model has weakened in the field of global public health.

The AIDS epidemic arouses changes in public health governance concepts and policies. Public health experts begin to provide governance norms in response by using international human rights law, which means that the veil of national sovereignty will be lifted, and it is contrary to the Westphalian framework established by the IHR of 1981. At the same time, the emphasis on human rights stimulates the increasing role of non-state actors in public health governance, and it thus strengthens the overall transformation from horizontal to vertical strategies. After entering the 20th Century, most great powers successfully reduces the incidence and mortality of infectious diseases in their territories through domestic public health reforms and the use of antibiotics and vaccines, and their reliance on the WHO and the IHR of 1981 is significantly reduced. Hence, the IHR of 1981 is abandoned by great powers, the WHO and its member states, and the Westphalian public health system is placed in a fuzzy area. By the 1990s, the Westphalian infectious disease control model seems to be in a serious dilemma, but the development from the 1970s to the 1980s shows that the vertical public health strategy supported by international human rights law and influenced by non-governmental organizations (NGOs) will become the characteristics of the next generation of infectious disease control and governance. 

The Post-Westphalian model pays more attention to the threats caused by infectious diseases to human rights, the joint health between states and the distributive justice, such as the prevention and treatment of AIDS. It makes the WHO’s claim of pursuing the ‘basic right to health’ reappear on the stage of international public health governance, which is evidenced by cases such as the declaration of the general right to health put forward by the UN in 2000 and the appointment of a specific right to health investigator in 2002. Therefore, the core theme of Post-Westphalian public health governance is to exercise national sovereignty in a way that contributes to global health governance and the production of global public health products, but the compliance mechanism of the IHR of 1981 is not adjusted.

3. Global Health Governance Model. — The emergence of new infectious disease in the middle and late 1990s makes the capability of the WHO as an international public health guidance and coordination institution be criticized, and the outbreak of SARS highlights the inadequate role of the WHO in public health governance. The previous horizontal international mechanism centered on the state is unable to adapt to the global crisis brought by SARS, and establishing principles, agreements and procedures for international cooperation and strengthening compliance obligation mechanism become important issues.

The WHO passed a resolution in 1995 to amend the IHR of 1981. After several years of discussion and the subsequent outbreak of SARS, the amendment was made in 2005. This amendment gives the IHR of 2005 the authority to intervene in the prevention and control of new infectious diseases before the outbreak, when risk information or the outbreak occurs, changing the previous single post-event response mechanism. In terms of the specific content amendment, four parts are added, including expanding the notification of the Public Health Emergency of International Concern (PHEIC), strengthening epidemic warning and response, increasing member states’ focal points and the construction of epidemic prevention, control and response capacity, which is described as ‘the result of the experience and lessons learned in the past 30 years’. However, the IHR of 2005 still strives to seek a compromise between safeguarding national sovereignty and collective international interests, and the WHO’s mandatory authorization is still very limited, which highlights the complexity and inherent tension of the global disease surveillance and control system. Like the current coronavirus epidemic, during the Ebola outbreak in West Africa from 2014 to 2016, states generally ignored the measures recommended by the WHO and interfered with the fight against the epidemic, leading to widespread doubts about the effectiveness of the WHO and the IHR of 2005.


B. The Raising of Problem


Whether the Ebola virus in West Africa or the current coronavirus epidemic, they are all beyond the governance capability of a single state. It requires states to resolve this international issue through cooperation under bilateral or multilateral treaties. As a multilateral legal treaty for the prevention, response, and control of infectious diseases for the international community at present, the IHR of 2005 provides the framework, norm and guidance for coordination and cooperation among states in epidemic prevention, trade, travel and other aspects. However, according to an article published in The Lancet, dozens of states implements travel restrictions on China during the coronavirus period, thus violating the IHR of 2005. According to the interpretation framework of the Vienna Convention on the Law of Treaties, combined with the legal meaning of article 43 of the IHR of 2005, such states clearly violate their obligations under the international law and also bring challenges to the implementation of the IHR of 2005 and international law. This paper will analyze the internal logic of compliance mechanism of the IHR of 2005 from the perspective of international law, analyze the current dilemma, and propose the program path for breakthrough and optimization.


II. INTERNAL LOGIC OF THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS OF 2005


From the first international health conference held in France in 1851 to the establishment of the WHO in 1946, the main goal is to coordinate border quarantine measures in the prevention and control of infectious diseases in different states, and avoid ‘excessive measures’ against international trade and the flow of people while preventing ‘exogenous threats’. With this goal, the WHO adheres to the concept and model of emergency control in the early stage, mainly as a professional organization rather than a political organization. 


A. Establishing the Securitization Framework to Depoliticize


The concept and theory of ‘securitization’ are first proposed by scholars such as Ole Waever and Barry Buzan from the ‘Copenhagen School’. On the basis of learning from previous theories, Ole Waever believes that ‘security’ should be regarded as a verbal act, and the core issue is not whether the threat exists, but the way that particular events occur (troop movement, migration, or environmental degradation) can pose a threat to society. At the same time, Ole Waever puts forward that not all discussions on security are regarded as security affairs, and securitized speech acts need to follow a specific rhetorical structure, he also proposes specific conditions: the participant (i) claims that the object being referred to is under an existential threat; (ii) requires an unconventional response to the threat; and (iii) convinces the audience that the rule is as follows: it is reasonable to break the behavior in response to the threat. Specifically, in other words, by marking things as security, an issue is dramatized as the highest priority issue. People can think that securitization is the process of elevating non-politicized (issues are not discussed) or politicized (issues are publicly debated) issues to security issues that need to be handled urgently, and bypassing political procedures such as public debates.

The current global public health ‘securitization’ framework constructed by the WHO is based on the logic. So far, its most prominent report is the focus on global public health security by the World Health Report of 2007. Firstly, the global public health crisis poses an ‘existential threat’ to individuals, states, and the international community; secondly, initiating the securitization of global public health issues by means of the speech act of objects in the IHR of 2005; finally, establishing relevant norms, the Constitution and the IHR of 2005, through the interaction between subjects in the international community. The ‘securitization’ framework adopted by the WHO aims to reduce ‘political’ factors and interference, and lower the impact on international cooperation by value or the motivation of interests, which also conforms to the three principles of the Westphalian model: the principle of national sovereignty, the principle of non-interference in the affairs of other states, and the normative principle of international law based on consent. Using advanced epidemiological methods and modeling techniques to assess the widespread security threats in the field of public health, the WHO understands and assesses the possibility of disease infection and spread through technology, and implements its own jurisdiction by implementing disease-oriented policies to coordinate and promote cooperation among states, the technical method is particularly evident in the IHR.


B. Expanding Functions to Enhance the Effectiveness of the Governance System


After the establishment of the health securitization framework, it is necessary to form a consensus on the surveillance, prevention and control of infectious diseases. Based on the limitation and backwardness of the IHR of 1969 and the experience of SARS prevention and control, the IHR of 2005 reflects the WHO’s intention to create a governance mechanism that fully and effectively monitors and responds to infectious diseases in the era of globalization. Firstly, expanding the application scope of the IHR of 2005. Bringing in the PHEIC and non-communicable diseases (including chemical and nuclear incidents), and health crises caused by weapons of mass destruction to ensure global health and safety. Secondly, enhancing the authority and power of the WHO. Including epidemic surveillance information of NGOs to change the previous situation of relying solely on member states to obtain information, and member states must respond to the verification of information obtained by the WHO from NGOs. Finally, based on the information provided by member states or collected from other sources, as well as the opinions of the Emergency Committee, the Director-General of the WHO has the right to declare the PHEIC, which is intended to get rid of the balance between the domestic and international interests of member states directly affected by the epidemic. After the PHEIC is announced, the Director-General of the WHO has the right to issue interim recommendations on epidemic prevention and control measures directly to member states and non-state entities. During the SARS period, travel warnings released by the WHO have political and economic impacts on member states, which indicates that the issuance of these temporary recommendations involves real power. On this basis, with the aforementioned collection of non-governmental information sources, the WHO intends to form an external ‘dual grip’ of its member states to promote sovereign states to participate in global health governance more openly and efficiently.

The prevention and control of infectious diseases inevitably involve the reduction and restriction of rights, but sanitary measures that restrict individual rights must follow the principles of necessity and fairness. Paragraph 1 of article 3 in the IHR of 2005 stipulates that ‘the implementation of the regulations shall fully respect human dignity, human rights and fundamental freedom’, and article 32 stipulates that ‘when implementing health measures under the regulations, contracting states shall treat travelers with respect for their dignity, human rights and fundamental freedoms’, which demonstrates the importance of human rights protection in international health governance. Therefore, the IHR of 2005 not only stipulates the goals of security, economy and development, but also incorporates the principle of human rights into its implementation system, thus constructing the public health that integrates security, economy, people’s livelihood, development and human dignity with the attributes of public goods, rather than the previous IHR only limited to removing restrictions on trade and travel.

In addition, the WHO has the right to name and shame member states that do not meet the requirements regarding outbreaks, trade and travel bans, and human rights enforcement. Independent of sovereign states as member states, the possession of such power by the WHO has broken through the previous vertical governance model of the Westphalian system, which opens a new model of international health governance in both international law and international politics.


C. The International Health Regulations Gives Member States ‘Autonomy’ in Compliance


According to article 21 of the Constitution, the World Health Assembly, as the highest decision-making body of the WHO, has the power to issue ‘procedures aimed at preventing the international spread of diseases’. After the SARS epidemic, the IHR amended by the World Health Assembly in 2005 does not require the approval of 194 member states. It only ‘takes effect after notifying each member state’. Although member states can make comments within the time limit, it also shows that member states have great trust in the technical rules formulated by experts, technocrats and diplomats. The IHR of 2005 aims to create a rules-based disease surveillance and response mechanism, and national sovereignty should give way to the common goal of the international community. Since its entry into force in 2007, the IHR of 2005 represents the international consensus on how to deal with epidemics and also becomes the core document of the international community for the prevention and control of infectious diseases.

Under the securitization framework, the IHR of 2005 is based on the assumption that sharing epidemic information conforms to the interests of the international community. Therefore, information sharing between member states and the WHO secretariat is the cornerstone of international infectious disease surveillance and response. Since the WHO cannot collect information on its own in each member state, it mainly relies on the competent authorities of each member state. Article 4 of the IHR of 2005 requires each member state to establish a focal point for the contact with the WHO; article 6 stipulates that all states must notify the WHO of all events that may constitute a PHEIC within 24 hours; article 12 stipulates that the Director-General of the WHO can decide to declare the PHEIC based on the information provided by member states or collected from other sources, and issue recommendations for each member state to take epidemic prevention and control measures. Certainly, these decisions must take into account the opinions of the Emergency Committee of medical experts convened by the Director-General. Under the system, each member state shoulders most of the responsibility for monitoring and reporting the public health indicator information required to trigger any PHEIC notification. Hence, reporting the information by member states is the basis for the WHO’s epidemic management.

Under the horizontal governance model, obligations stipulated in the IHR of 2005 are based on seeking a balance between national interests and the interests of the international community. Therefore, it not only stipulates the ‘immediate’ obligation of member states to notify epidemic information and apply the list of measures, the ‘long-term’ obligation for capacity building of each member state, and the ‘contingent’ obligation that may be fulfilled depending on specific circumstances. Among them, the immediate obligation is related to the effective operation of the WHO, for example, article 18 lists the measures that the WHO recommends to states to take during the epidemic, including isolating infected persons, implementing supplementary screening procedures at airports and seaports, and even implementing travel bans, etc. Hence, member states should implement it in theory. However, article 43 of the IHR of 2005 allows member states to take sanitary measures other than those recommended by the WHO, as long as they notify the WHO and provide the scientific basis. It may include measures against individuals, or even measures against states, such as travel bans. It can be seen that once member states fulfill their notification obligations, optional actions may have strong reasons to be supported.


III. REALISTIC DILEMMA OF THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS



Despite the great success in the eradication of smallpox in its early stages, combined with SARS, the IHR of 2005 carries out many reforms in terms of the scope of epidemic prevention and operating mechanism system, and establishes a new international normative system. However, in the face of the global health crisis triggered by the current coronavirus epidemic, the IHR of 2005 has encountered unprecedented doubts and difficulties. It not only highlights the severe circumstance and challenge in the prevention and control of the coronavirus epidemic, but also exposes some deep-seated difficulties and problems in the implementation of the IHR of 2005.


A. There Are Differences between the Securitization Framework  and the Specific Implementation Path


Since the beginning of the new century, the WHO has been actively promoting the concept of global (public) health security. The IHR of 2005 initially establishes the health securitization framework to avoid politicization, so that some scholars propose that the current global health security framework is different from the state-centered international health security system in the classical system. In fact, the system under the IHR of 2005 does not completely abandon state-centrism, but builds a safety net of ‘Member State +’, which helps to deal with the situation that certain member states are unable or unwilling to report the PHEIC. As far as security is concerned, the IHR of 2005 and the closely related global health security framework are still state-centered, and the target object is still the state.

From the objective point of view, the IHR of 2005 only applies to the PHEIC. Except for the few diseases designated as automatically reportable diseases, the events announced under the IHR of 2005 must be ‘unusual or unexpected’ or there must be a risk of international spread or the risk imposed with international travel and trade restrictions, and purely domestic public health incident does not belong to the scope. Such diseases are still marginalized in the global health security framework, which shows that the progress in dealing with broader health security threats is still very limited. Therefore, the IHR of 2005 mainly focuses on pathogens that cross national borders, including a fairly traditional goal, that is, to protect nation-states from foreign diseases and deal with other states’ disproportionate travel and trade restriction due to epidemic prevention and control. This idea and practice of treating pathogens as exogenous threats to protect the state from the impact of the epidemic are exactly the same as the International Health Convention of 1851. It is true that under the system of the IHR of 2005, western developed countries are the main objects to be protected from international infectious diseases, although this implicit logic may not be hoped for by the drafters.

However, it raises important issues about the distribution of rights and responsibilities. Compared with the previous version, the IHR of 2005 requires member states to assess and strengthen their capabilities to respond to domestic public health emergencies. It is essential for developing countries to invest heavily in their domestic disease surveillance infrastructure to meet the requirements of the IHR of 2005. Although such investments may be indispensable for the effective operation of the global health security framework, they may not reflect the domestic health priorities of certain member states. In recent years, developing countries have challenged this issue in a variety of ways. For example, Brazil argued that ‘the term had no clear meaning and there was no consensus among the members of the World Health Assembly’ in the WHO Executive Committee in January 2008, and opposed the WHO secretariat applying the term to the World Health Report of 2007 related to the IHR of 2005. After all, the global health security framework is inevitably influenced by the international power distribution system. Therefore, many disputes are surrounding the distribution of global health security costs and benefits, such as the dispute between Indonesia and the WHO on sharing influenza virus samples. Under the coronavirus epidemic in 2020, some politicians of the US used the source of the virus to discredit China’s anti-epidemic efforts and claimed to hold China ‘accountable’. It once again confirms that in the state-led global governance system, although the public health security framework is closely related to the healthy and sustainable development of the international community, it is difficult to practice and implement effectively.


B. Lack of Legal Accountability Mechanism Leads to Dysfunction


Promoting international public health cooperation under the securitization framework is an important function of the WHO. The IHR of 2005 is amended based on the SARS epidemic and is a legal document formulated for the international community to respond to new infectious virus epidemics. However, when a state violates the IHR of 2005, the WHO cannot invoke legal liability, and can only submit reports of non-compliance by member states to the World Health Assembly, relying on naming and shaming to highlight the damage to the international reputation and the increased national mortality, etc. Under the coronavirus epidemic, this implementation is proved to be seriously insufficient. For violations of the IHR of 2005, apart from being criticized by the media and academia, it is likely that there will be no sanctions.

On January 30, 2020, the Director-General of the WHO declared the coronavirus epidemic as a PHEIC after listening to the opinions of the Emergency Committee, and issued some temporary recommendations, but did not recommend any travel or trade restrictions. In this regard, few states in Europe and the US believe that the WHO ‘fails to objectively evaluate the current situation of the epidemic in China but defends China’, and should announce the PHEIC as soon as possible. In fact, article 12 of the IHR of 2005 stipulates the standard for determining the PHEIC. In addition to considering the information provided by contracting states, it should also consider whether the disease is unusual or unexpected, its impact on the public health outside the affected country, and international actions that may be immediately taken. However, these standards are open and difficult to be defined in purely legal terms. From 2009 to 2020, the WHO has announced six PHEICs. The membership of the Emergency Committee is not fixed when the WHO Director-General convenes for a specific event. The committee needs to make decisions quickly under the auspices of the WHO Director-General, which involves the interpretation of the content of the IHR of 2005. Except for general standards stipulated in the IHR of 2005, the committee will also consider specific situational factors to provide flexible interpretations. For example, the committee exerted pressure on stubborn states such as Pakistan in the polio case in 2014, and considered the usefulness of the PHEIC statement during the Ebola virus in 2018 and 2019. Except that the standards may vary from case to case, the committee’s discussions are not open to the public, and only the final results of the meeting are released. Therefore, this ‘black box’ decision-making process makes it more difficult to determine which epidemiological data should be considered for a PHEIC, or why the IHR of 2005 should be interpreted in a specific way.

Moreover, the IHR of 2005 mentions humanitarian principles, although most of them focus on cross-border travelers. Nevertheless, it is unclear whether the public health countermeasures adopted by different states are legal under the coronavirus epidemic, what criteria to be based on, and whether the additional public health measures stipulated in article 43 of the IHR of 2005 also apply to a purely domestic level.


C. The Discretion of Member States Reduces the Authority and Effectiveness of the Mechanism


In order to detect, prevent and control the epidemic from the source before its international spread, the second part Information and Public Health Response in the IHR of 2005 clearly requires states to assess and strengthen their capacities to respond to domestic public health emergencies, and quickly detect and respond to the epidemic with the support of the legislation, finance and national contact points. Even if the statutory period is extended, none of the states has reached the level of capacity building required by the IHR of 2005. It is worth mentioning that the WHO States Parties Annual Report (SPAR) is inherently self-interested and unreliable due to the lack of independent verification and the difference in evaluation indicators among states. However, even in this case, capacity indicators of the EU that has the highest compliance level are only 75 percent. Facing the current coronavirus epidemic, WHO member states are obviously at a disadvantage and have suffered great impact and destruction. The achievement of core capacities of member states is an undisputed benchmark for preparing for international infectious diseases. Whether due to insufficient funds, resources or willingness, the failure of WHO member states to achieve capacity construction seriously undermines the effectiveness of member states in responding to the coronavirus epidemic.

The securitization framework is based on the assumption that the interests of member states are aligned with those of the international community, which is the basis of the IHR to give the Director-General of the WHO the right to declare the PHEIC to mobilize and coordinate international actions. In theory, it is in the common interest of member states and the international community to share such information, but in practice, the reason for the reluctance of states to cooperate is that the declaration of PHEIC may lead to strong measures taken against it by other states, such as travel bans, passenger segregation or trade restrictions, which shows the interests deviation of member states and the international community. Member states may consider their interests, the adherence to national sovereignty, insufficient resources or capacity, and the fact that the WHO does not have the political will or capacity to compel member states to comply with their reporting obligations. At the same time, for the existing legal tool, the institutional capacity of WHO does not allow the collection of data information independently of member states. As a result, the general refusal of WHO member states to share information would lead to the closure of the entire system and would put the international community as a whole at risk.

Horizontal governance is based on the consideration of national sovereignty and the outbreak of each state, so article 43 of the IHR of 2005 provides for epidemic control strategies on the basis of available scientific evidence. A week after the coronavirus epidemic was declared as a PHEIC, a total of 72 WHO member states around the world imposed travel restrictions, with more than two-thirds of them not officially informing the WHO of their travel restrictions. Some scholars put forward that these states not only violate the obligation of member states to comply with the WHO recommendations under paragraphs 1 and 2 of article 43, and the humanity principle under paragraph 1 of article 3, but also violate that member states shall timely inform the WHO and provide relevant scientific information after taking ‘other health measures’ under paragraphs 3 and 5 of article 43 in the IHR of 2005. It is worth mentioning that the declaration of PHEIC is based on the IHR of 2005, but it does not impose new international law obligations for WHO member states. After all, the temporary recommendations are not binding, and there are no direct legal consequences for their disregard. Therefore, if member states do not comply with the temporary recommendations of the WHO on the basis of their security and interests, the role and significance of PHEIC will be directly undermined. In theory, article 56 of the IHR of 2005 provides for the settlement of disputes of international liability, but this provision has never been invoked. In the context of the coronavirus outbreak, it is unknown whether this approach will reach meaningful results. Indeed, the IHR of 2005 is far from perfect, such as, it only governs states, and does not cover companies or other NGOs. Hence, when airlines stopped flying to affected states or regions because of the coronavirus epidemic, some states began to be subject to de facto travel restrictions.

It is worth noting that the implementation of additional travel and trade bans while abandoning the WHO guidance is a ‘double offense’, because the same type of behavior occurred during the Ebola and swine flu outbreaks, these violations reflect the confidence crisis in the IHR of 2005 in some states.


IV. REFORM PATH FOR THE COMPLIANCE OF THE INTERNATIONAL HEALTH REGULATIONS OF 2005


The IHR of 2005 has always been the legal framework for the international community to respond to public health security. However, the authority and effectiveness of the legal system designed by the IHR of 2005 encounter difficulties and challenges due to the continuous uncertainty in the spread of the coronavirus epidemic and its epidemiological characteristics. Actually, before the coronavirus epidemic, the Ebola epidemic in West Africa exposes the challenges and deficiencies faced by the IHR of 2005. Just as the IHR of 2005 has formed the current framework and expression after a series of amendments inspired by previous epidemics and infectious diseases, how to reconstruct the international public health governance system to effectively deal with future infectious diseases and repair the trust that states lost during the coronavirus epidemic is an important issue faced by current international public health governance.


A. Establishing a Risk Framework to Coordinate Global Health Governance


Since the establishment of the WHO, it adheres to its professional orientation and implements its own jurisdiction with the aid of medical expertise in the prevention and treatment of infectious diseases in a securitization framework, but rarely involves political issues related to international security. However, in the current globalized nation-state system, international politics is difficult to be completely neglected, especially in the global public health governance system. The AIDS virus that emerged in the 1980s is a new type of infectious disease, and its 2 million deaths per year directly threaten the stability and security of the state and region. The subsequent outbreaks of SARS and Ebola, as well as the current coronavirus epidemic, have become the content of the UN General Assembly and Security Council resolutions. Because these infectious diseases can spread rapidly among states through travel and trade, they are identified as global risks. The term ‘global health’ comes into being, and it also implies that global health management requires new political initiatives related to health.

Risk is mainly used to calculate the probability of an event in the field of modern science, and it is also used in the fields of medicine and public health. For example, risk factors and the risk of death indicate the possibility of an individual getting sick or dying from a disease. But in the field of global health, risk generally refers to events that cannot be measured. Certainly, the use of risk is not to describe the global health problem from a statistical perspective, but to construct it as a policy issue in a specific way, and then to promote a specific response policy. Many policy documents and reports clearly identify infectious diseases as global health risks. In particular, the UN General Assembly approved the Sendai Framework for Disaster Risk Reduction in 2015, which embodies the shift in terminology from disaster management to disaster risk management, and pays special attention to health. Globalization plays a key role in the global health risk framework. It not only accelerates liquidity and makes it easier for pathogens to spread quickly and widely, but also plays an important role in the interaction of major systems such as trade, finance, communications, and travel. Therefore, naturally evolving pathogens use a global system to expand the catastrophic impact of infectious diseases to a global scale, making the outbreak of infectious diseases catastrophic, but it is unpredictable and inevitable.

In terms of connotation, the global health risk framework not only combines the ethical requirements of coordinating states to take actions with a neutral and inclusive keynote, but also modifies the excessive avoidance of securitization framework in politics, and acknowledges that certain interests take precedence over others. Under the current coronavirus epidemic, the global public health governance framework is indeed stronger in protecting the interests of the US and other Western developed countries than in protecting the people in countries with low income. This is not to deny that people in low-income countries benefit from the system of preventing and controlling global infectious diseases. However, compared with developed countries, millions of people in low-income countries still die every year due to health issues that are not defined as global risks and are unlikely to be resolved through prevention and control policies. It shows that states have significant differences in the capacity to determine infectious disease standards and deploy global health governance resources. On the surface, the securitization framework conceals the political significance of global health governance to promote collective action in the appearance of neutrality, urgency and inclusiveness. Nevertheless, in the long run, it may also undermine the legitimacy and damage the effectiveness of global health governance. To effectively and legally conduct global health governance, national and local interests need to be reflected in global decision making. However, the global health risk framework incorporates political factors, and it is no longer pure and objective professional technology, but an occasion where different interests and values can be expressed, thereby arousing politics and potential competition. It requires the establishment of a scientifically neutral framework to avoid the overall politicization of global health governance and limit the scope of competition, negotiation and compromise among different interests.

With the risk framework as the concept, building a global health framework based on the type of risk, especially in crises, and resonating with the interests of a particular state or people with power in an attempt to take action or legitimize it. In accordance with the nature and type of risk, biomedicine is the most direct and long-term risk framework, focusing on the risk of pathogens and toxins to human function, and it can also be scaled up to consider the risk to the physical and mental health of the population. If it is highly pathogenic, the virus can spread from person to person leading to large-scale transmission of infectious diseases, such as the current coronavirus pneumonia, it should be characterized as a risk in the biomedical framework.

Therefore, in global public health governance, the risk framework combines the aura of scientific objectivity with the potentially catastrophic influence of infectious diseases through the moral call for action, while balancing the political interests and values behind the rules. At the same time, the risk framework helps to understand how health problems reflect and contribute to the vulnerability of the international community, as well as the broad impact on trade and travel, thereby driving states and individuals to take effective actions to respond to unpredictable and unavoidable emergencies in the future.


B. Improving Normative Authority to Enhance the Effectiveness of Vertical Governance


As an important principle of customary international law, the performance of international obligations in good faith is essential to the authority and effectiveness of the IHR of 2005. Member states ignore ‘other health measures’ in article 43 and temporary recommendations of the Emergency Committee, and how to hold accountable for potential violators is the core issue that cannot be avoided in the compliance with the IHR of 2005. Whether there is a violation is uncertain, and neither the Organic Law nor the IHR of 2005 confers the right to invoke any legal liability on the WHO, which is a clear design choice based on professional orientation of the WHO. Although the WHO does not have the right to impose sanctions on member states that violate legal obligations at any time, it can use various means to enhance compliance.

1. Enhancing the Normative Authority of the PHEIC Mechanism. — Except for the Director-General, the Emergency Committee provides opinions to the Director-General on whether the PHEIC conditions are met and the issuance, modification, continuation or cancellation of temporary recommendations. Since the important role of the Emergency Committee in declaring the PHEIC and the significance of declaring the PHEIC for global epidemic prevention and control, ensuring its process transparency and decision-making independence is conducive to maintaining the objectivity, fairness, legitimacy and validity in the decision-making of PHEIC.

‘Sunlight is the best antiseptic, and light bulbs are the most effective police.’ Transparency is considered to be the core of good governance. It can not only defend the legal validity of the process and its final decision, but also gain the understanding and support of all states that may be concerned or affected during the implementation and execution. In addition to fulfilling the obligation to report to the WHO in time, member states should also ensure the comprehensiveness, completeness and accuracy of the report. China notified the coronavirus epidemic early, but because it was not yet certain whether there was ‘person-to-person transmission’ in the early stage, it was not until January 21, 2020 that academician Zhong Nanshan determined that ‘the novel coronavirus pneumonia must spread from person to person’ based on the epidemiological investigation. In order to improve the transparency and fairness of the Emergency Committee’s resolutions and ensure the effectiveness of PHEIC, the committee meetings can be broadcast live, and the official written discussion records should be made public, updated in real time and accessible to the public, thereby enhancing the transparency and legality of the committee and its work. For some sensitive information or matters involving the discretion of the committee, the live broadcast can be suspended, and related records should be deleted to ensure that all parties have frank and open discussions on health issues, while ensuring that the entire decision-making process remains transparent and legal. At the same time, the WHO must ensure that committee members make judgments based on independent scientific evidence and avoid conflicts of interest and political influence. It requires the committee to announce the list of its members and disclose its evidence and decision-making basis to gain public trust and support.

Regarding the violation of temporary recommendations by the US and other member states under the coronavirus epidemic, scholars have mentioned that ‘temporary recommendations’ should be given legal force, but it is contrary to the current IHR of 2005 which lacks a clear design of enforcement mechanism. Moreover, member states believe that there is no need to transform the WHO, which is a technical agency, into the world health police. Although this may be the only way to effectively prevent global infectious diseases, it is considered that there is no authority over the state, and this approach will lead to the capture of the WHO’s decisions by major powers and private interests. Therefore, temporary recommendations should not be given legal force easily. After all, the IHR of 2005 creates a soft law cooperation mechanism, not a global sanction regime or global health sovereignty.

2. Clearly Declaring the Consideration Elements and Conditions of the PHEIC. — According to the definition of PHEIC in article 1 of the IHR of 2005, the PHEIC refers to unusual events determined in accordance with the provisions of the IHR: (i) the international spread of the disease constitutes a public health hazard to other states; (ii) a coordinated international response may be required. This definition highlights that the PHEIC requires the concurrence of a public health hazard to other states and the need for coordinated international response measures. The reason why the WHO Emergency Committee did not declare the coronavirus epidemic as the PHEIC in the first two meetings is mainly the differences in the meaning of international spread. If all known cases outside China are individuals who are infected in China and subsequently travel abroad, then it can be considered that this does not constitute international spread, because most infectious diseases declared as the PHEIC have crossed national boundaries and spread from person to person in other states, and only then do they have ‘public health risks to other states’. According to the fact that the coronavirus epidemic is spreading globally, although the PHEIC is international, it does not mean that a certain disease must have crossed an international border or spread in a state other than the state of origin. As long as it has the potential for cross-border spread, or there must be a risk of cross-border spread, even if there is no cross-border spread currently, it should be declared as a PHEIC, so the determining factor is the risk of international spread.

Article 9 of the IHR of 2005 definitely mentions the assessment based on ‘established epidemiological principles’, and that whether there is a risk of international spread is one of the elements of the assessment. Certainly, the corresponding standards for declaring the PHEIC may vary from case to case, so all the standards and factors cannot be exhausted, but they can be improved in terms of procedures. The Emergency Committee must not only release the final results of the meeting, but also broadcast the discussion process to the public, actively publicizing which epidemiological data should be considered, or how and why the requirements of the IHR of 2005 should be interpreted in a specific way. Sorting out and clearly considering the elements and conditions is conducive to enhancing the trust and compliance of member states in PHEIC, thereby enhancing the normative authority of the WHO and the IHR of 2005.

3. Improving the Dispute Settlement Mechanism. — As the coronavirus epidemic is raging around the world, some states, including the US, ignore recommendations of the WHO and adopt measures such as trade and travel bans that hinder the development of medical supplies and health work. While cooperating with the relevant member states to eliminate harmful policies, the Director-General of WHO shall disclose the reasons for requiring them to take other measures and the necessity of asking him to reconsider such measures, and actively encourage member states to conduct mediation and arbitration in accordance with article 56(3) of the IHR of 2005, such as instructing member states to apply the optional rules of the Permanent Court of Arbitration on disputes between two states. 

At the same time, in accordance with paragraph 4 of article 56, the IHR of 2005 does not restrict member states from seeking other dispute settlement mechanisms, so the IHR of 2005 can be included in the international standards admitted by the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) to enhance the effectiveness of its implementation. Once the WHO system detects or receives the notification of an infectious disease epidemic from a state, other states can initiate trade bans and other measures to prevent cross-border spread based on the SPS, and related disputes caused by this can also be resolved through the dispute settlement mechanism of the World Trade Organization (WTO). First of all, protecting the life and health of humans, animals or plants is an important goal of the WTO. Paragraph b of article 20 in the General Agreement on Tariffs and Trade stipulates that contracting parties can formulate various epidemic inspection and prevention measures. Secondly, article 2 and annex A of the SPS explicitly stipulate the formulation and application scope of the epidemic inspection and prevention measures. Article 3 also stipulates the coordination and compatibility of the SPS and other ‘international standards, guidelines and recommendations’. Finally, if the SPS adopts the IHR of 2005 as one of the recognized international standards, it needs to coordinate the relevant provisions between them to avoid potential conflicts when the WTO dispute settlement mechanism cites their norms, guidelines, and standards.


C. Enhancing the Compliance Capacity of Member States


The IHR of 2005 mainly relies on a horizontal compliance mechanism, that is, to review the compliance level of member states based on their annual reports submitted to the World Health Assembly. This ‘bottom-up’ compliance mechanism gives member states ‘autonomy’, but also tests its core capacity building. These indicators are the basis for the response to infectious diseases, and the lack of core capacity building directly impairs the capacities of states to deal with the coronavirus epidemic. Therefore, it is the undisputed choice for member states to build strong, measurable, funded and sustained core capacity to respond to global infectious diseases. Member states should invest resources to establish and maintain a public health system, and adopt strict standards and indicators to evaluate their own core capacity building. As mentioned earlier, developed countries benefit more from the current international public health governance system, hence they should provide financial support and technical assistance to developing countries to bridge the capacity gap. With the help of targeted donations from donors, a vertical project is constructed to help recipients improve the relevant capacity building system. At the same time, the construction of diagnostic laboratories, sample transmission systems, and surveillance systems designed to monitor abnormal or unexpected public health events in some states should also be strengthened through horizontal programs.

Strict external evaluation should also be introduced while self-evaluating. The WHO should establish an independent assessment system and a feedback mechanism to continuously improve the core capacity building of member states, and enhance the trust among member states with clear, transparent and effective evaluation standards. The IHR of 2005 should formulate a global health security standard, sort out existing standards and ensure a single health strategy to reduce unnecessary duplication of assessments. In terms of the assessment initiation mechanism, in addition to the WHO’s initiation of the assessment mechanism, it also includes the application of other member states to the WHO for the assessment of other member states to urge all parties to complete core capacity building. External assessment indicators should be directly incorporated into annex 1 of the IHR of 2005 which contains requirements for monitoring and responding to core capacities, and measurable indicators and standards should be further refined. In order to resolve the rejection of external assessment by member states based on sovereignty, the assessment team should be composed of domestic and foreign experts in reference to the composition of the Emergency Committee, and governments and civil society should fully participate. The work of the expert group is mainly constructive and collaborative, aiming to identify capacity gaps, formulate a road map and determine the source of funds, so as to improve and enhance the core capacities and basic health facility construction of member states.

At the same time, linking independent assessment with external funds will promote cooperation and mobilize resources to build the core capacities of member states. The Pandemic Emergency Financing Facility of the World Bank should provide funds for national cooperation through the assessment of the IHR of 2005. International donors such as regional development banks, global funds and charitable organizations can also provide fund sources for the core capacities of member states based on strict assessments. All these measures will strengthen the state’s commitment to the establishment of a sound health system, and improve the compliance capacities of member states to ensure collective security.


V. CONCLUSION


As the only and indispensable legal framework for global health security, the IHR of 2005 is the product of experience, negotiation and compromise of the international community. The continuous spread of the coronavirus epidemic around the world arouses doubts and criticisms of the IHR of 2005. Discussions on building a strong sanctions-based IHR of 2005 have been constantly mentioned. Based on the experience of fighting Ebola in 2005, the World Health Assembly is still unlikely to grant the WHO the power to sanction member states, because it requires the WHO to have extensive monitoring capabilities and strong enforcement capabilities, and directly use domestic reports to circumvent governments of states, which is contrary to the current international political system of nation-states.

However, the lack of a strong component does not mean that the reform of the IHR of 2005 is meaningless. In the concept of prevention and control of international infectious diseases, a risk framework should be established, and international political factors should be taken into consideration, and one-sided pursuit of depoliticization should not be separated from reality. In the PHEIC mechanism, some procedural regulations should be adjusted and optimized to improve the decision-making structure and increase the willingness of member states to comply with the regulation on the basis of enhancing trust. Promoting cooperation and mobilizing resources to help member states complete core capacity building through independent assessments and external fund links, thereby promoting compliance with the IHR of 2005. Nevertheless, no matter how the reform of the IHR of 2005 is presented, the international community should be aware of its impact on the next pandemic.



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