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Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Threats

Abstract

Global health law remains crucial to preventing, detecting, and responding to COVID-19 — implementing the IHR to control the rapid spread of this novel coronavirus — and this column explores the long evolution and continuing limitations of this WHO framework. Outlining the international legal landscape, this column examines the evolution of global governance over infectious disease, describing how limitations of global health governance led to the contemporary revision of the IHR. This column then analyzes the implementation of the revised IHR in the COVID-19 response, reflecting both the promise of the IHR in promoting global solidarity and the weaknesses of the IHR in realizing an effective international response to this global threat. Given the continuing limitations of the IHR, this column considers reformed international legal authorities and new international legal instruments to bind states together under global health law in facing future pandemic threats.
376 journal of law, medicine & ethics
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
DOI: 10.1177/1073110520935354
Has Global Health Law Risen to Meet the
COVID-19 Challenge? Revisiting the International
Health Regulations to Prepare for Future Threats
Lawrence O. Gostin, J.D., LL.D. (Hon.), is University Professor at Georgetown
University and the Founding Linda D. & Timothy J. O’Neill Professor of Global
Health Law at Georgetown University Law Center and Director of the World Health
Organization Center on National and Global Health Law. Roojin Habibi , J.D.,
M.Sc., is a Research Fellow at the Global Strategy Lab and a Doctoral Candidate at
Osgoode Hall Law School, York University. Benjamin Mason Meier, J.D., LL.M.,
Ph.D., is an Associate Professor of Global Health Policy at the University of North
Carolina at Chapel Hill and a Scholar at the O’Neill Institute for National and Global
Health Law.
Global Health Law
Lawrence O. Gostin,
Roojin Habibi, and
Benjamin Mason Meier
Global health law is essential in
responding to the infectious disease
threats of a globalizing world, where
no single country, or border, can wall
o disease. Yet, the Coronavirus Dis-
ease (COVID-19) pandemic has tested
the essential legal foundations of the
global health system. Within weeks,
the SARS-CoV-2 coronavirus has cir-
cumnavigated the globe, bringing the
world to a halt and exposing the fra-
gility of the international legal order.
Reflecting on how global health law
will emerge in the aftermath of the
COVID-19 pandemic, it will be cru-
cial to examine the lessons learned
in the COVID-19 response and the
reforms required to rebuild global
health institutions while maintaining
core values of human rights, rule of
law, and global solidarity in the face
of unprecedented threats.
Unlike anything seen since the
Great Influenza Pandemic of 1918,
health systems have faltered under
the strain of the COVID-19 pan-
demic, with cascading disruptions
throughout the world. Borders have
closed, businesses shuttered, and
daily life brought to a standstill. In
the absence of a treatment or vaccine,
governments worldwide have sought
to ensure physical distancing across
their populations; yet, vulnerable,
marginalized, and disadvantaged
populations have faced structural
obstacles in meeting these necessary
imperatives to contain the disease.
This unequal risk of infection is exac-
erbating health inequities — within
and across nations — with weak
health systems lacking the capacity to
implement mitigation strategies, test
at-risk populations, or treat infected
individuals. As the coronavirus
sweeps across unprepared nations,
national legal responses have proven
unable to prevent, detect, or respond
to the pandemic, and the sheer scale
of human, social, and economic
upheaval has challenged global
health law as never before.
Framing global health law to con-
trol infectious disease, the Interna-
tional Health Regulations (IHR)
have established a global surveillance
and reporting system and set national
minimum mandatory controls to pre-
vent disease and maximum permis-
sible limitations on individual rights,
state sovereignty, and commercial
interests. Last revised in 2005 fol-
lowing the shortcomings in national
and global responses to the severe
acute respiratory syndrome (SARS)
epidemic, the revised IHR provide a
legal framework through the World
Health Organization (WHO) to build
national capacity for infectious dis-
ease prevention and detection and
to strengthen global governance to
address any public health emergency
of international concern. While these
IHR obligations were intended to
facilitate international coordina-
tion in the context of public health
emergencies, nationalist responses
have challenged global governance in
addressing this pandemic challenge.
Amidst challenging global health cir-
cumstances, WHO has faced increas-
ing IHR violations from states and,
as a consequence, limited influence
in the COVID-19 response.
About This Column
Lawrence O. Gostin and
Benjamin Mason Meier serve
as the section editors for Global
Health Law. Professor Gostin is
University Professor at Georgetown
University and the Founding Linda
D. & Timothy J. O’Neill Professor of
Global Health Law at Georgetown
University Law Center and Director
of the World Health Organization
Center on National and Global
Health Law. Professor Meier is an
Associate Professor of Global Health
Policy at the University of North
Carolina at Chapel Hill and a Scholar
at the O’Neill Institute for National
and Global Health Law. This column
will feature timely analyses and
perspectives on law, policy, and justice
in global health.
Gostin, Habibi and Meier
opioid controversies: the crisis — causes and solutions • summer 2020 377
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
Global health law remains cru-
cial to preventing, detecting, and
responding to COVID-19 — imple-
menting the IHR to control the rapid
spread of this novel coronavirus —
and this column explores the long
evolution and continuing limitations
of this WHO framework. Outlining
the international legal landscape,
this column examines the evolution
of global governance over infectious
disease, describing how limitations
of global health governance led to the
contemporary revision of the IHR.
This column then analyzes the imple-
mentation of the revised IHR in the
COVID-19 response, reflecting both
the promise of the IHR in promoting
global solidarity and the weaknesses
of the IHR in realizing an eective
international response to this global
threat. Given the continuing limita-
tions of the IHR, this column con-
siders reformed international legal
authorities and new international
legal instruments to bind states
together under global health law in
facing future pandemic threats.
The Legal Landscape
Drawing from the long history of
international health law described
in the opening column on “Global
Health Law,”1 the 1946 WHO Con-
stitution provided WHO with the
authority to negotiate conventions,
regulations, and recommendations
on any public health matter. With
this broad constitutional author-
ity to regulate public health, WHO
assumed governance over the IHR as
an international legal framework to
control infectious disease. The IHR
aim to structure a harmonized sur-
veillance, reporting, and response
system across WHO member states
— with these regulations automati-
cally binding on all WHO member
states unless explicitly rejected. Yet,
the applicability of the IHR was
limited to only three select diseases
(cholera, plague, and yellow fever),
and as the world faced a continuous
stream of emerging and re-emerging
diseases, the principal international
legal instrument for preventing,
detecting, and responding to infec-
tious disease outbreaks was increas-
ingly seen as inadequate.
Despite calls for the revision of the
IHR, it took an outbreak of a novel
coronavirus to prompt international
action. SARS emerged in Guangdong,
China in late 2002, but China did not
inform WHO of this emerging threat
— as SARS was not one of the three
diseases covered by the IHR. China’s
delay in accurately reporting the
SARS outbreak — compounded by
the use of domestic legal restrictions
inconsistent with public health prac-
tice — drew widespread international
condemnation, raising calls for WHO
action.2 With SARS highlighting the
weaknesses of international law to
control for infectious disease, the
international community committed
with remarkable speed to updating
the breadth, scope, and notification
obligations under the IHR.
The 2005 revision of the IHR
provides the contemporary legal
framework to prevent, detect, and
respond to public health emergen-
cies of international concern. The
IHR were revised to achieve a higher
level of global health security while
avoiding unnecessary interference to
international trac and safeguard-
ing human rights in the public health
response.3
Looking beyond specific infec-
tious diseases, IHR (2005) codified
the versatile and encompassing cat-
egory of a Public Health Emergency
of International Concern (PHEIC),
which includes any extraordinary
event that:
1. constitutes a public health risk to
other states through the interna-
tional spread of disease (broadly
defined as “any illness or medical
condition, irrespective of ori-
gin or source, that presents or
could present significant harm to
humans”) and
2. potentially requires a coordinated
international response.4
Through National IHR Focal Points,
states bear an obligation to notify
WHO within 24 hours of all detected
events within their territory which
may constitute a PHEIC.5 Based upon
information received from both state
and non-state sources (e.g., media
and online sources, civil society, and
other states), the WHO Director-
General has the ultimate authority to
determine whether an event consti-
tutes a PHEIC, considering:
1. information provided by the State
Party within whose territory an
event is occurring;
2. advice from an ad hoc technical
expert group known as the Emer-
gency Committee;
3. scientific principles, available sci-
entific evidence, and other related
information; and
4. an assessment of the risk to
human health, of the risk of inter-
national spread, and of the risk
of interference with international
trac.6
This PHEIC declaration has since
been employed by WHO six times to
control the international spread of
infectious disease: polio, Zika, Influ-
Reflecting on how global health law will emerge
in the aftermath of the COVID-19 pandemic, it
will be crucial to examine the lessons learned
in the COVID-19 response and the reforms
required to rebuild global health institutions
while maintaining core values of human rights,
rule of law, and global solidarity in the face of
unprecedented threats.
378 journal of law, medicine & ethics
JLME COLUMN
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
enza H1N1, Ebola (in West Africa and
then in the Congo), and most recently
in the ongoing global struggle against
COVID-19.
Beyond the international declara-
tion of a PHEIC, the IHR bind states
to build their domestic capacities
to prevent, detect, and respond to
infectious disease. Using the nor-
mative power of global health law
to frame national eorts to contain
disease, the IHR set concrete obliga-
tions for governments to strengthen
national public health capacities and
improve global health security. States
retain sovereign authority to develop
national health legislation, but this
domestic legislation “should uphold
the purpose” of the IHR, reinforc-
ing international commitments.7
These international health commit-
ments extend to human rights law,
with the IHR requiring that domes-
tic implementation “shall be with the
full respect for the dignity, human
rights and fundamental freedoms of
persons.8 Thus, national measures
under the IHR must be based on sci-
entific risk assessment and must not
be more restrictive of international
traffic, or more intrusive to indi-
viduals, than reasonably available
alternatives.9 Where nations lack the
capacity to meet these commitments,
the IHR provide a path for interna-
tional collaboration and assistance
in the development, strengthening,
and maintenance of national public
health capacities.10
Under this international legal
framework for global health secu-
rity, WHO plays a coordinating role
in supporting member states to
strengthen health systems and build
public health capacities. However,
states were slow to reform their pub-
lic health capacities following IHR
(2005), pushing WHO to work with
states in 2016 to develop monitoring
mechanisms to facilitate accountabil-
ity for public health law reforms. The
resulting Joint External Evaluation
(JEE) has provided a monitoring and
evaluation tool to assess IHR imple-
mentation at the country-level, cre-
ating an independent expert review
process to: assess national progress
in meeting IHR core capacities, find
gaps in implementation, and iden-
tify best practices.11 This voluntary,
collaborative, multisectoral process
seeks to help countries strengthen
their capacities to prevent, detect,
and rapidly respond to public health
threats. Yet despite these evolving
eorts to support states in building
public health capacities and meet-
ing IHR responsibilities, many states
continue to shoulder weak health sys-
tems with inadequate legal capacity.12
Implementing the IHR in the
COVID-19 Response
The COVID-19 pandemic has brought
into sharp focus the limitations of the
IHR in (1) notifying WHO of public
health risks; (2) declaring a PHEIC
where necessary in the international
response; (3) coordinating national
responses commensurate with public
health risks; and (4) fostering global
solidarity for infectious disease pre-
vention, detection, and response.
From the initial outbreak in China,
notification delays significantly ham-
pered WHO’s ability to understand
the scope of the threat and coordinate
the international response. Although
China first reported a case of novel
coronavirus to WHO on December
31, 2019, retrospective analyses have
demonstrated that SARS-CoV-2 was
already circulating in Wuhan for sev-
eral weeks prior to the first WHO
notification.13 One of the principal
IHR reforms in 2005 sought to allow
WHO to take account of non-state
(“unofficial”) sources of informa-
tion, recognizing that governments
are often reluctant to notify WHO
of novel pathogens within their bor-
ders; however, this innovation was
ineffective in the early days of the
COVID-19 outbreak, as Chinese
authorities repressed health work-
ers, scientists, and civil society in
December 2019 — keeping them
from sharing timely concerns about
a novel coronavirus in Wuhan.14 (As
the IHR does not provide WHO with
the authority to investigate events
independently, the IHR requirement
for WHO to verify reports received
from non-state sources with the rel-
evant state dismantled an additional
channel through which WHO could
have received the necessary informa-
tion.15) Legitimate questions remain
as to what Chinese authorities knew,
when they learned it, and whether
they notified WHO in a “timely, accu-
rate and suciently detailed” manner
in accordance with the IHR16 — or
whether, as with SARS, the response
was impeded by the information poli-
tics of autocratic governance, leaving
WHO with insucient information
to promptly declare a PHEIC.17
Even after China notified WHO
about this coronavirus outbreak, the
IHR failed to facilitate WHO’s rapid
declaration of a PHEIC, delaying
global preparations for a pandemic
response. With inadequate reporting
and a split in expert opinion, WHO
Director-General Tedros Adhanom
Ghebreyesus convened an Emer-
gency Committee on three occasions
in late January 2020 to advise on the
declaration of a PHEIC, as the Com-
mittee continued to find that it was
“too early” and that there were “a lim-
ited number of cases abroad.18 (The
definition of a PHEIC may have been
misapplied at this critical juncture,
as neither the timing of the threat
nor the actual international spread
of disease are constitutive elements
of a PHEIC — on the latter question,
there need only be the “potential” for
international spread.19) A PHEIC
was finally declared on January 30th,
by which point the coronavirus was
well on its way to becoming a pan-
demic – something WHO would not
formally acknowledge until March
11th.20 Global health law scholars
have long questioned WHO’s tenta-
tive approach to declaring a PHEIC,
arguing that where the IHR defini-
tion is met, a PHEIC declaration can
spur action, investment, and soli-
darity from the international com-
munity.21 Yet, WHO has remained
diplomatically hesitant to exercise its
authority to declare a PHEIC, appre-
hensive of a declaration that could
devastate the economies of aected
states and spur nationalist measures
that hamper global coordination.22
Following this PHEIC declara-
tion, states have responded with
overwhelming restrictions on inter-
national traffic, individual rights,
and global commerce — with these
nationalist restrictions taken in direct
contravention of WHO recommenda-
Gostin, Habibi and Meier
opioid controversies: the crisis — causes and solutions • summer 2020 379
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
tions. In responding to PHEICs under
the IHR, state responses are expected
to adhere to WHO’s temporary recom-
mendations and other IHR parame-
ters.23 Where states apply other health
measures, such measures are required
under the IHR to achieve equal or
greater health protection than WHO
recommendations and be:
1. based on scientific principles,
and available scientific evidence,
or where such evidence is insuf-
ficient, on advice from the WHO
and other relevant intergovern-
mental organizations;
2. not more invasive to persons or
more restrictive of international
trac than reasonably available
alternatives; and
3. implemented with full respect
for the dignity, human rights
and fundamental freedom of
persons.24
Although states have disregarded
WHO recommendations in the past
by enacting travel and trade restric-
tions, the sheer scale of violative state
actions — including travel bans, flight
suspensions, visa restrictions, and
border closures — has brought inter-
actions within and between countries
to a grinding halt.25 Governments
rapidly instituted domestic Stay-
at-Home orders, closed businesses,
banned public gatherings, and even
erected cordon sanitaires (guarded
areas where individuals may not
enter or leave).26 (WHO praised
China’s containment eorts as “ambi-
tious, agile and aggressive,27 yet it
has since tempered its enthusiasm for
such restrictions on individual liber-
ties.28) Even as evidence increasingly
points to the need for widespread
testing, contact tracing, and physi-
cal distancing,29 with transparent
governance and public participation
in health decision-making, govern-
ments are increasingly using such
states of emergency as pretext for
widespread abuses of human rights
and subversive attacks on democratic
governance.30
Finally, the rise of nationalism has
undercut the global solidarity envis-
aged under the IHR, which requires
states to adopt a common and shared
responsibility to “collaborate…to the
extent possible.31 While IHR duties
of international “collaboration and
assistance” are intentionally unspe-
cific, states have taken advantage
of these ambiguities to limit their
actions to national frontiers, shirk-
ing international responsibilities and
undermining WHO governance. The
international community’s failure to
ensure the equitable global distribu-
tion of “sta, stu, space and systems”
has already twice created the perfect
storm for the resurgence of Ebola.32
Instead of now coming together to
confront the COVID-19 pandemic
through global governance, states
have reverted to isolationist policies,
geopolitical competition, and global
neglect. This shortsightedness amidst
the COVID-19 pandemic, neglect-
ing WHO guidance and threatening
WHO support when global gover-
nance is needed most, has exposed
the world to staggering humanitar-
ian upheaval, economic instability,
and health insecurity.33
The world is now paying in immea-
surable human suffering for these
compounding IHR violations, with
COVID-19 presenting a lasting threat
to health security, human rights,
and the rule of law.34 Where states
fail to uphold global health law, the
world loses the ability to mitigate
common threats through collective
action. The future of global health
must have international law at its
foundation, and the WHO Director-
General has already advocated for
strengthening the IHR to reflect
an independent assessment of the
COVID-19 response. When the pan-
demic recedes, WHO must mobilize
its member states to undertake this
major review of international legal
authorities, including WHO’s institu-
tional structure, to realize the prom-
ise of global health law in addressing
future infectious disease threats.
Revising Global Health Law to
Meet Future Threats
Global health law has proven unable
to mitigate the threat of COVID-19,
raising an imperative for interna-
tional legal reforms to clarify state
obligations, facilitate legal account-
ability, and realize global health secu-
rity. Such holistic reforms of global
health law will require either the
undertaking of fundamental revi-
sions to the IHR framework or the
development of a new international
legal instrument to structure global
health governance.
Strengthening global governance,
it will be necessary to ensure that
WHO is amply funded and politically
supported, empowering it to “speak
truth to power” in confronting gov-
ernments that do not comply with
science-based recommendations.
This will require critical reforms of
The future of global health must have
international law at its foundation, and the WHO
Director-General has already advocated for
strengthening the IHR to reflect an independent
assessment of the COVID-19 response. When
the pandemic recedes, WHO must mobilize its
member states to undertake this major review of
international legal authorities, including WHO’s
institutional structure, to realize the promise of
global health law in addressing future infectious
disease threats.
380 journal of law, medicine & ethics
JLME COLUMN
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
global health law, including revisions
to provide authority for:
Enhanced Surveillance and Man-
datory Reporting — allowing for
unocial data sources, including
civil society and academic experts,
and the independent collection of
public health data where necessary
by WHO sta;35
Transparency in PHEIC Delib-
erations — allowing for open and
independent EC decision-making36
and shifting from a binary trigger
to a tiered system of multiple levels
of public health emergency to spur
commensurate state responses;37
Rapid & Public Monitoring of
State Measures — allowing for
scrutiny of state decisions that
do not comply with WHO guid-
ance, with monitoring and review
in global economic governance,
under international trade law, and
through the human rights system;
and
Global Funding Mechanisms
allowing for the development of
new or reformed global governance
institutions to pool international
funding and bolster technical
support for the development of
sustainable national public health
systems to prevent, detect, and
respond to outbreaks.38
Developed through global health law
reforms, WHO has authority under
its constitution to negotiate conven-
tions (art. 19), regulations (art. 21),
and recommendations (art. 23), and
all of these authorities should be con-
sidered in either:
Revising the IHR architecture to
reflect the imperative for reforms
— with built-in and ongoing pro-
cesses to amend the IHR in accor-
dance with the changing nature of
future public health emergencies
and evolving scientific knowledge;
Drafting a Framework Convention
on Infectious Disease — with bind-
ing obligations and accountability
mechanisms under a newly-nego-
tiated legal instrument, supported
by compliance mechanisms, peri-
odic meetings of states parties, and
dispute settlement processes;39 or
Providing standing WHO recom-
mendations on necessary state
responses — with detailed WHO
guidance on appropriate national
policies and regular empirical anal-
ysis of the impact of public health
laws on public health outcomes.
States will be the ultimate deci-
sionmakers in these next steps, yet
these reforms must recognize the
ongoing struggle that states have
faced in preventing, detecting, and
responding to infectious disease.
Where the COVID-19 pandemic has
presented an unprecedented threat
to global health, impacting every
country throughout the world, it will
be urgently necessary at the earli-
est appropriate moment to reshape
the global health law landscape to
respond collectively to the common
threat of future pandemics.
Note
The authors have no conflicts to disclose.
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... Despite fundamental IHR reforms in 2005 in the wake of the SARS epidemic, responses to COVID-19 have revealed continuing legal limitations in: notifying WHO rapidly of novel outbreaks, adhering to WHO recommendations, and realizing global solidarity in confronting a common threat. 1 In the absence of international legal obligations, essential medical countermeasures such as diagnostics, personal protective equipment, vaccines, and therapeutics remain inequitably allocated. Without innovative reforms in global health law and governance, the same inadequate, ineffective, and unjust response is likely to occur when the next health crisis occurs -a crisis could be even more catastrophic than the COVID-19 pandemic. ...
... Even today, as many high-income nations have achieved high vaccination coverage and are returning to some normalcy, most low-and middle-income states face an extreme scarcity of vaccine doses, medical treatments, oxygen supplies, and personal protective equipment. 7 COVID-19 has highlighted the lack of clarity of state obligations, the failure of political will to follow public health guidance, and the absence of meaningful accountability for IHR violations, weakening WHO governance in the pandemic. ...
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