By Mohammad Reza Kameli, Juris Doctor candidate at William & Mary Law School, fellow at the Center for the Study of Law and Markets, and Lead Online Editor at William & Mary Law Review.
Introduction
Since its creation in 1948, the World Health Organisation has been at the center of global health security maintenance, and it has produced the most comprehensive document for responding to infectious disease outbreaks across the world: the International Health Regulations (IHR). First adopted in 1969, the IHR originally targeted cholera, plague, and yellow fever.[1] However, in the most recent update in 2005, the IHR’s application has been expanded to cover all infectious disease outbreaks[2]. This recent version also includes important provisions such as core capacity building, non-state actor involvement in the detection stage, and, most importantly, transparency requirements.[3]
Article 6 of the IHR requires Member States to notify the WHO, through their focal point, “of all events which may constitute a public health emergency of international concern[4] within its territory … as well as any health measure implemented in response to the events.”[5] Most notably, each Member State must notify the WHO within twenty-four hours of any such occurrence.[6] That said, the IHR lack an enforcement mechanism or even a mandatory dispute settlement process.[7] As a result, countries continue to delay notification and limit their information-sharing with the WHO.[8]
At the outset of the Covid-19 pandemic, some countries, who are signatories to the WHO Constitution and have ratified the IHR, failed to comply with the IHR transparency requirements.[9] The WHO’s track record proves that the organisation lacks any enforcement capacity, and the IHR do not carry mechanisms designed to induce state compliance.[10] Therefore, it is critical to look at other frameworks that are better suited to oversee and enforce compliance with the IHR.
Accordingly, this analysis proposes that the IHR be incorporated under the World Trade Organisation (WTO) framework, for two principal reasons. First, the WTO has a fundamental interest in taking charge of global health governance.[11] Second, and most importantly, the WTO allows Members to take enforcement measures in accordance with its rules in the event of noncompliance from other Members.[12] The WTO’s institutional framework coupled with its experience in overseeing compliance with transparency requirements in other contexts puts it in the best position to oversee the implementation of the IHR.
Proposal for Ensuring Enforceability of the IHR
a. Membership Conditionality and Institutionalized Sanctions as Tools for Enforcing the IHR
An effective enforcement regime combines compliance-inducing incentives with violation-deterring sanctions. Furthermore, to be legitimate, a multilateral enforcement mechanism must benefit from wide acceptance of its protected rights by its members.[13]
Membership conditionality, internalized/externalized outcasting, and comprehensive trade sanctions are tools that can compose the foregoing enforcement regime. Membership conditionality is one theory of enforcement whereby institutions link admission to behavior.[14] Its primary advantage is that even if a country disagrees with the normative underpinnings, the practical payoff of membership is large enough to compel policy actors to alter their behavior.[15] By contrast, outcasting, which refers to the threat of exclusion from a treaty body, involves denying the benefits of membership to noncomplying member states.[16]
Currently, most international organizations have little to no means of enforcing their own regulations, including the WHO.[17] In fact, the WHO Ebola Interim Assessment Panel urged the WHO to “establish and implement a mechanism that allows for the sanctioning of Member States which directly or indirectly violate the IHR.”[18] Expectedly, states have more recently resorted to unilateral sanctions which are problematic and often conducive to the rise of power politics.[19] Therefore, “embedding”[20] or “institutionalizing”[21] sanctions is one way of ensuring that they remain legitimate.
The World Trade Organization “is regarded as one of the strongest and most effective legal regimes in existence.”[22] It uses an “adjudicated external outcasting regime.”[23] Cases are brought before the Dispute Settlement Body only upon the request of a Member State, and once a decision is rendered, it is the states, not the WTO legal regime, that enforce the rulings.[24] This system of institutionalized sanctions assures the parties that they will not randomly become targets of sanctions, which will, in turn, increase the effectiveness of the regime and produce less resistance from the Member States.[25]
b. What Makes the WTO the Preferred Framework to Oversee the IHR?
First and foremost, the WTO has a history of dealing with public health issues.[26] Frameworks such as “the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), and the WTO’s dispute settlement mechanism” render the WTO a more competent body for infectious disease control.[27] In fact, the WTO has already moved in the direction of playing a leading role in global health governance in recognition that population health is necessary for free and open trade.[28]
Furthermore, the WTO already has extensive experience in overseeing and enforcing the transparency requirements set forth in the SPS Agreement.[29] The benefits of the SPS Agreement’s transparency requirements have been two-fold: they have “complement[ed] dispute settlement,” by providing Member States equal access to information to raise disputes, and “substitute[d] dispute settlement” by promoting dialogue and decreasing tensions between them.[30]
The SPS Agreement example shows that, thanks to its unique framework, the WTO can enable Member States to be the monitors of implementation by other countries “in a cooperative manner.”[31] To date, fear of embarrassment and economic downturn are recognized as the primary factors that countries consider when they refuse to promptly cooperate with the WHO to detect and analyze potential outbreaks in their territories.[32] However, under the WTO regime, the impetus for lack of transparency would be less because the collective resources of Member States far outweigh that of the WHO in discovering potential threats to global health security in other countries and responding accordingly. Deterrence would thus be coupled with punitive consequences.
In order to incorporate the IHR into the WTO, two paths lie ahead. The Dispute Settlement and Appellate bodies can interpret the WTO provisions that are pertinent to public health maintenance in consideration of the standards set forth in the IHR. For example, Article XX(b) of the WTO states that Members are allowed to take measures “necessary to protect human, animal or plant life or health.”[33] The Appellate Body has already held that determining what is necessary to protect human health is a “holistic operation” that requires weighing and balancing, inter alia, the values at stake.[34] It has nonetheless been cautious not to grant Members a cart blanche to adopt trade-restrictive measures, namely an import ban, as that would undermine the core principles of free trade upon which the WTO has been founded.[35] That being said, the holistic inquiry may favor trade-restrictive measures when concerned Member states direct them at products imported from a country that due to its past record and ongoing lack of compliance with IHR transparency requirements is susceptible to a viral outbreak.
Alternatively, the IHR could be incorporated into the WTO by renegotiating the Agreement on the Establishment of the World Trade Organization and including the IHR therein.[36] The main challenge to this proposal stems from the need for a significant majority of countries to agree on this incorporation. While previous proposals for incorporating human rights standards into the WTO have not yielded considerable results, there are important distinctions between those proposals and the one advocated here.[37] The WTO is primarily concerned with the regulation of goods as opposed to people, and its primary beneficiaries are corporations and governments rather than individuals.[38] Therefore, the maintenance of global health security lies at the core of the WTO’s function, and a review of the economic costs of the current pandemic undergirds that theory.[39]
Furthermore, the proposal laid out here relies on a well-functioning Dispute Settlement and Appellate Body in the WTO wherein Member States can bring cases against violators of the IHR and push for trade sanctions. However, recent developments at the WTO have temporarily paralyzed the Appellate Body.[40]
That notwithstanding, the WTO consists of 164 members, and 98% of all international trade occurs between WTO members.[41] It is thus quite likely that countries including the United States will reenter negotiations to address their concerns regarding the Appellate Body procedure, the approach to trade remedies, and on other issues, such as transparency and notification, and developing-country status.[42] Given the existing need for re-negotiating parts of the WTO framework, the circumstances are ripe for advocating the incorporation of the IHR within the WTO.
Finally, a concern regarding this proposal may be that not all countries that are currently WHO members are members of the WTO. However, due to the benefits in terms of trade and economic growth that countries seek to obtain from joining the WTO, its membership has been on the rise from 23 in 1948 to 164 in 2020.[43] While this increase in membership has not been without its challenges,[44] there are currently 25 countries that are observers to the WTO and have been negotiating for full membership.[45] Therefore, the negotiation process for accession poses a special “moment of leverage” to press new entrants abide by the requirements of the IHR in view of the WTO’s enforcement mechanisms.[46]
Handling of Covid-19 with the IHR Incorporated into the WTO
If the IHR had been incorporated in the WTO, Member States would have had a responsibility and inclination to monitor for potential disease outbreaks in their neighboring countries, those countries they did the most trade with, and the ones they thought would be most susceptible. Public health capacities such as surveillance, reporting, verification, response, and collaboration would have been particularly scrutinized by Member States to ensure compliance with the IHR.[47]
In China’s case, reports indicate that Taiwan had heard reports of human-to-human transmission of Covid-19 in Wuhan province as early as December 2019.[48] Taiwan’s reports to China were shelved by the WHO for about a month when the WHO more actively began to gather information from Chinese authorities regarding the nature of the then-novel disease.[49] This would have been unlikely to be the case under the WTO framework where, upon Taiwan’s reporting, all Member States would have been immediately notified and started their own inquiries. Suspected countries would have been inclined to share their information to avoid immediate partial halts in their trade with other Members, especially in regard to products and services that pose greater risk.[50]
Furthermore, if immediate protective measures did not bear fruit, Member States could bring a case before the DSB to seek compliance of the violating country. If noncompliance persisted, the dispute settlement bodies could authorize members to impose trade sanctions on the violating country(ies).[51] Some may respond by arguing against the efficacy of trade sanctions against large economic powerhouses. However, under the WTO’s multilateral regime, Member States can coordinate their activities so as to increase deterrence while minimizing the impacts on their respective economies.
As a result of the monitoring and enforcement regime laid out above, what was initially a Covid-19 epidemic may not have become as widespread as it did by March.[52] One of the reasons for failing to enforce the IHR is that members’ compliance continues as long as it remains beneficial to them.[53] Under the WTO, members will not retain the option not to comply with the IHR without facing economic consequences.
Conclusion
The literature surrounding the IHR’s lack of enforcement mechanisms has been extensive in light of infectious disease outbreaks that have emerged over the past two decades. The WHO, as a single international organisation with large responsibilities, has been continuously criticized for its handling of disease outbreaks around the world. Incorporating the IHR into the WTO will solve for many of the deficiencies that they’ve suffered from under the WHO. This proposal primarily relies on two elements: an effective and functioning Dispute Settlement and Appellate Body, and the consent of WTO Member States to effectuate these changes. Currently, the Appellate Body does not have judicial quorum; however, most parties agree that there is a need for renegotiating parts of the WTO framework. The grave and ongoing economic consequences of the pandemic stress the importance of addressing global health security proactively in the international trade context. Hence, the opportunity seems ripe for discussing the incorporation of the IHR into the WTO.
[1] See Eric Mack, The World Health Organization’s New International Health Regulations: Incursion on State Sovereignty and Ill-Fated Response to Global Health Issues, 7 Chi. J. Int’l Law 365, 367-68 (June 1, 2016).
[2] According to the WHO, the regulations “will prevent, protect against, control and provide a public health response to the international spread of disease.” World Health Assembly, Third Report of Committee A, A58/55 at art. 2 (May 23, 2005). The WHA officially adopted the IHR in this report and incorporated its provisions therein.
[3] See Mack, supra note 1 at 371.
[4] Refers to an extraordinary event which constitutes a public health risk to other countries around the world through the international spread of the disease requiring a prompt coordinated response. World Health Organization, International Health Regulations (2d ed. 2005) [hereinafter WHO, International Health Regulations].
[5] WHO, International Health Regulations, art. 6.
[6] See id.
[7] Kumana Wilson et al., Strengthening the International Health Regulations: Lessons from the H1N1 Pandemic, 25 Health Pol’y and Plan. 505, 507 (Nov. 2010).
[8] Lawrence O. Gostin & Rebecca Katz, The International Health Regulations: The Governing Framework for Global Health Security, 94 Milibank Q. 264, 279 (Jun. 2016).
[9] See, e.g., China Delayed Releasing Coronavirus Info, Frustrating WHO, Associated Press (June 3, 2020), available at https://apnews.com/article/3c061794970661042b18d5aeaaed9fae.
[10] See Gostin, supra note 8, at 280. Delayed notification and limited information-sharing also happened during the Ebola outbreak in Africa, in Saudi Arabia during MERS, and in China during the 2002 SARS outbreak. Id.
[11] See infra note 40-42.
[12] See infra note 23-26.
[13] Patricia Stirling, The Use of Trade Sanctions as an Enforcement Mechanism for Basic Human Rights: A Proposal for Addition to the World Trade Organization, 11 Am. U. Int’l Law Rev. 1, 3 (1996).
[14] Judith Kelly, International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions, 58 Int’l Org. Found. 425, 427-28 (2014).
[15] Id. at 432. Membership conditionality by the EU was crucial in motivating Baltic states to change their policies in the past several decades. Id. at 426.
[16] See Oona Hathaway & Scott J. Shapiro, Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252, 258 (2011).
[17] Andrea Spagnalo, (Non)Compliance with the International Health Regulations of the WHO from the Perspective of the Law of International Responsibility, Glob. Jurist 1, 2 (2017).
[18] World Health Organization, Report of the Ebola Interim Assessment Panel, 7 July 2015, http://www.who.int/csr/resources/publications/ebola/ebolainterim-assessment/en/.
[19] Anu Bradford & Omri Ben-Shahar, Efficient Enforcement in International Law, 12 Chi. J. Int’l Law 375, 381 (2012). See also Hans J. Morgenthau, Politics Among Nations The Struggle For Power And Peace 312 (6th ed. 1985, rev. by Kenneth W. Thompson) (1948).
[20] Hathaway, supra note 16, at 321.
[21] Tseming Yang, International Treaty Enforcement as a Public Good: Institutional Deterrent Sanctions in International Environmental Agreements, 27 Mich. J. Int’l Law 1131, 1154 (2006).
[22] Hathaway, supra note 16, at 307.
[23] Id. at 313.
[24] Id. at 307.
[25] See Yang, supra note 22, at 1154.
[26] See David P. Fidler, Emerging Trends in International Law Concerning Global Infectious Disease Control, 9 Emerging Infectious Diseases 285 (2003).
[27] Id. at 288.
[28] Id. at 289.
[29] See WTO Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A (1994) [hereinafter SPS Agreement]; see also Mariana Karttunen, Transparency and Dispute Settlements: A Study On the Agreement On Sanitary and Phytosanitary Measures and Technical Barriers to Trade (Dec. 12, 2016) (Ph.D. dissertation, European University Institute).
[30] Karttunen, supra note 30, at 17-18.
[31] Id.
[32] See O. Gostin, supra note 8, at 279.
[33] Agreement Establishing the World Trade Organization, art XX(b), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 81 (1994) [hereinafter WTO Agreement].
[34] Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (Adopted Dec. 17, 2007).
[35] See Id.
[36] See WTO Agreement.
[37] See generally Stirling, supra note 13; GAO Pengcheng, Rethinking the Relationship Between the WTO and International Human Rights, 8 Rich. J. Global L. & Bus. 397 (2009).
[38] Id. at 401-04.
[39] See Ira Kalish, Weekly Global Economic Update, Deloitte (Oct. 2020), https://www2.deloitte.com/us/en/insights/economy/global-economic-outlook/weekly-update.html; Harry Kretchmer, 5 urgent actions to stop future pandemics crushing the global economy, World Econ. F. (Oct. 12, 2020), https://www.weforum.org/agenda/2020/10/economic-cost-covid-global-preparedness-monitoring-board/.
[40] Steve Charnovitz, How WTO Dispute Settlement Succumbed to the Trump Administration 15 (GWU Law Sch. Pub. Rsch. Paper, Paper No. 2019-73, 2019), https://ssrn.com/abstract=3505266.
[41] Marianne Schneider-Petsinger, Reforming the World Trade Organization, Chatham House 4 (Sept. 2020), https://www.chathamhouse.org/sites/default/files/publications/research/2020-09-11-reforming-wto-schneider-petsinger.pdf.pdf.
[42] Id. at 31.
[43] See Christina L. Davis & Meredith Wilf, WTO Membership, in The Oxford Handbook in the Political Economy of International Trade 380, 381 (Lisa L. Martin ed., 2015).
[44] See id. at 382-89.
[45] World Trade Organization, Members and Observers (Jul. 29, 2016), https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm.
[46] Davis, supra note 45, at 391.
[47] Milan BrahmBhatt & Olga Jones, International Cooperative Responses to Pandemic Threats: A Critical Analysis, 21 Brown J. World Affs. 164, 170 (2015).
[48] The Facts Regarding Taiwan’s Email to Alert WHO to Possible Danger of Covid-19, Taiwan Ctr. Disease Control (Apr. 11, 2020), https://www.cdc.gov.tw/En/Bulletin/Detail/PAD-lbwDHeN_bLa-viBOuw?typeid=158.
[49] Frak Chen, WHO ‘Refused to Act’ On Taiwan’s Virus Alert, AsiaTimes (March 27, 2020), https://asiatimes.com/2020/03/who-refused-to-act-on-taiwans-virus-alert/.
[50] See WTO Agreement. During the 2009 H1N1 epidemic, twenty countries banned meat imports from, inter alia, Canada and Mexico as a result of which the two countries suffered major economic losses. See Gostin, supra note 8, at 279.
[51] See Hathaway, supra note 16, at 313 (“If the wrongdoing state refuses to cure its behavior … the state that filed the complaint may then put in place the retaliatory trade sanctions.”).
[52] Cf. BrahmBhatt, supra note 49, at 167. On the global response to the Ebola outbreak in Africa, the UN reported that through effective and prompt response, the epidemic “could have been controlled for less than $200 million in April 2014 . . . [whereas,] by the fall, the estimate of control costs had risen by $4 billion.” Id.
[53] Erick Mack, supra note 1, at 366.
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