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Published online by Cambridge University Press: 13 November 2020
There is no time more opportune to review the workings of the International Health Regulations (IHR) than the present COVID-19 crisis. This article analyses the theoretical and practical aspects of international public health law (IPHL), particularly the IHR, to argue that it is woefully unprepared to protect human rights in times of a global public health crisis. To rectify this, the article argues that the IHR should design effective risk reduction and response strategies by incorporating concepts from international disaster law (IDL). Along similar lines, this article suggests that IDL also has a lot to learn from IPHL in terms of greater internationalisation and institutionalisation. Institutionalisation of IDL on par with IPHL will provide it with greater legitimacy, transparency and accountability. This article argues that greater cross-pollination of ideas between IDL and IPHL is necessary in order to make these disciplines more relevant for the future.
1 World Health Organization, “Novel Coronavirus (2019-nCoV) Situation Report 1” (21 January 2020) <https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200121-sitrep-1-2019-ncov.pdf?sfvrsn=20a99c10_4> (last accessed 18 October 2020).
2 A Lee, “Wuhan novel coronavirus (COVID-19): why global control is challenging?” (2020) 179 Public Health 1–2.
3 See A von Bogdandy and P Villarreal, “International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis” (2020) Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-07, 17.
4 A Boyle and C Chinkin, The Making of International Law (Oxford, Oxford University Press, 2007) p 17.
5 World Health Organization, International Health Regulations (3rd edn, 2005), Art 2 (“International Health Regulations”).
6 Constitution of the World Health Organization, 1946, Art 22.
7 KC Lauta, Disaster Law (Abingdon, Routledge 2015) p 94.
8 S Declich and AO Carter, “Public health surveillance: historical origins, methods and evaluation” (1994) 72(2) Bulletin of the World Health Organization 285, 287.
9 D Fidler, “The globalization of public health: the first 100 years of international health diplomacy” (2001) 79(9) Bulletin of the World Health Organization 842, 843.
10 D Fidler, International Law and Infectious Diseases (Oxford, Oxford University Press, 1999) p 23.
11 Constitution of the World Health Organization, 1946, Art 21.
12 International Health Regulations, Art 13.
13 International Health Regulations, Art 1.
14 International Health Regulations, Art 12.
15 International Health Regulations, Art 2.
16 International Health Regulations, Art 43.
17 World Health Organization, “Novel coronavirus (2019-nCoV) situation report – 18” (7 February 2020) <https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200207-sitrep-18-ncov.pdf?sfvrsn=fa644293_2> (last accessed 18 October 2020); M Corkery and A Karni, “Trump Administration Restricts Entry into U.S. From China” (The New York Times, 31 January 2020) <https://www.nytimes.com/2020/01/31/business/china-travel-coronavirus.html> (last accessed 18 October 2020).
18 R Habibi et al, “Do not violate the International Health Regulations during the COVID-19 outbreak” (2020) 395(10225) Lancet 664, 665.
19 International Health Regulations, Art 3.
20 S Chakraborty, “How Risk Perceptions, Not Evidence, Have Driven Harmful Policies on COVID-19” (2020) 11(2) European Journal of Risk Regulation 236, 239.
21 D Fidler, “From International Sanitary Conventions to Global Health Security: The New International Health Regulations” (2005) 4(2) Chinese Journal of International Law 325, 351.
22 M Broberg, “A Critical Appraisal of the World Health Organization’s International Health Regulations (2005) in Times of Pandemic: It Is Time for Revision” (2020) 11(2) European Journal of Risk Regulation 202, 208.
23 See International Health Regulations, Art 5.
24 For example, Art 44 of the IHR provides that State Parties to the IHR can collaborate with each other, to the extent possible, with regards to the detection and response to a public health risk. However, this provision fails to elaborate on the manner in which states can collaborate with each other to respond to a PHEIC.
25 United Nations International Strategy for Disaster Reduction (UNISDR), “Sendai Framework for disaster risk reduction 2015–2030” (2015) <http://www.wcdrr.org/uploads/Sendai_Framework_for_Disaster_Risk_Reduction_2015-2030.pdf> (last accessed 18 October 2020) (“Sendai Framework”). The Sendai Framework, based on the experiences of the Hyogo Framework for Action, sets forth the following four priority areas for focused action by states: first, understanding disaster risk; second, strengthening disaster risk governance to manage risk; third, investing in disaster risk reduction for resilience; and fourth, enhancing disaster preparedness for effective response and recovery.
26 IFRC, “Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance” (2007) <https://www.ifrc.org/PageFiles/41203/1205600-IDRL%20Guidelines-EN-LR%20(2).pdf> (last accessed 18 October 2020) (“IDRL Guidelines”).
27 International Health Regulations, Art 15.
28 International Health Regulations, Art 15(2).
29 L Gostin, M DeBartolo and E Friedman, “The International Health Regulations 10 Years On: The Governing Framework for Global Health Security” (2015) 386(10009) Lancet 2222, 2225.
30 WHO, “Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV)” (30 January 2020) <https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)> (last accessed 18 October 2020).
31 C Worsnop, “Domestic politics and the WHO’s International Health Regulations: Explaining the use of trade and travel barriers during disease outbreaks” (2017) 12 Review of International Organizations 365, 366.
32 A Alemanno, “Taming COVID-19 by Regulation: An Opportunity for Self-Reflection” (2020) 11(2) European Journal of Risk Regulation 187, 187; A Mandavilli, “SARS epidemic unmasks age-old quarantine conundrum” (2003) 9(5) Nature Medicine 487.
33 M Greenberger, “Better Prepare than React: Reordering Public Heath Priorities 100 Years after the Spanish Flu Epidemic” (2018) 108 American Journal of Public Health 1465, 1466; K Jobe, “The Constitutionality of Quarantine and Isolation Orders in an Ebola Epidemic and Beyond” (2016) 51(1) Wake Forest Law Review 165, 187.
34 C Bensimon and R Upshur, “Evidence and Effectiveness in Decisionmaking for Quarantine” (2007) 97(Suppl 1) American Journal of Public Health S44, S45; L Gostin and W Curran, “The Limits of Compulsion in Controlling AIDS” (1986) 16(6) Hastings Center Report 24, 26. Gostin and Curran note that isolations and quarantines are “the most serious form of deprivation of liberty that can be utilized against a competent and unwilling person”. They further observe that such measures are “based upon what a person might do in future rather than what he or she has done; there is no clear temporal limitation; and it is not subject to same rigorous due process procedures as in a criminal charge.”
35 See Siracusa Principles of the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Annex to the document of the UN Commission for Human Rights, 28 September 1984, E.CN.4/1985/4; A Zidar, “WHO International Health Regulations and human rights: from allusions to inclusion” (2015) 19(4) International Journal of Human Rights 505, 507.
36 S Brooks et al, “The psychological impact of quarantine and how to reduce it: rapid review of the evidence” (2020) 395(10227) Lancet 912, 916.
37 PTI, “Lockdown in India has impacted 40 million internal migrants: World Bank” (The Hindu, 23 April 2020) <https://www.thehindu.com/news/international/lockdown-in-india-has-impacted-40-million-internal-migrants-world-bank/article31411618.ece> (last accessed 18 October 2020); P Inman, “Half of world’s workers at immediate risk of livelihood due to coronavirus” (The Guardian, 29 April 2020) <https://www.theguardian.com/world/2020/apr/29/half-of-worlds-workers-at-immediate-risk-of-losing-livelihood-due-to-coronavirus> (last accessed 18 October 2020).
38 M Abi-Habib, “Millions Had Risen out of Poverty Coronavirus Is Pulling Them Back” (The New York Times, 30 April 2020) <https://www.nytimes.com/2020/04/30/world/asia/coronavirus-poverty-unemployment.html> (last accessed 18 October 2020).
39 See D Fidler, “COVID-19 and International Law: Must China Compensate Countries for the Damage?” (Just Security, 27 March 2020) <https://www.justsecurity.org/69394/covid-19-and-international-law-must-china-compensate-countries-for-the-damage-international-health-regulations/> (last accessed 18 October 2020).
40 WHO, “Report of the Director-General, 146th Meeting of the Executive Board” (3 February 2020) <https://www.who.int/dg/speeches/detail/report-of-the-director-general-146th-meeting-of-the-executive-board> (last accessed 18 October 2020).
41 At present, Art 43 of the IHR only requires Member States to notify the WHO of “the public health rationale and relevant scientific information” for undertaking any additional health measure. Thus, it does not ask Member States to clearly define the impacts that such additional measures may have on the human rights of persons within their territories.
42 J Darley and B Latane, “Bystander Intervention in Emergencies: Diffusion of Responsibility” (1968) 8(4) Journal of Personality and Social Psychology 377, 378. Darley and Latane hypothesised the bystander effect in following terms: “The more bystanders to an emergency, the less likely, or the more slowly, any one of the bystander will intervene and provide aid”.
43 E Graham-Harrison, “Coronavirus: how Asian countries acted while the west dithered” (The Guardian, 21 March 2020) <https://www.theguardian.com/world/2020/mar/21/coronavirus-asia-acted-west-dithered-hong-kong-taiwan-europe> (last accessed 18 October 2020).
44 See A Telesetsky, “Overlapping International Disaster Law Approaches with International Environmental Law Regimes to Address Latent Ecological Disaster” (2016) 52(1) Stanford Journal of International Law 179, 204.
45 Sendai Framework, para 25.
46 International Law Commission, “Draft articles on the protection of persons in the event of disasters (2016)” <https://legal.un.org/ilc/texts/instruments/english/draft_articles/6_3_2016.pdf> (last accessed 18 October 2020).
47 G Bartolini, “A universal treaty for disasters? Remarks on the International Law Commission’s Draft Articles on the Protection of Persons in the Even of Disasters” (2017) 99(3) International Review of the Red Cross 1103, 1106.
48 International Law Commission, Preliminary report on the protection of persons on the event of disasters by Special Rapporteur Eduardo Valencia-Ospina (5 May 2008) UN Doc A/CN.4/598, para 49.
49 See WHO, “Pandemic influenza preparedness Framework for the sharing of influenza viruses and access to vaccines and other benefits” (2011) <http://whqlibdoc.who.int/publications/2011/9789241503082_eng.pdf?ua=1> (last accessed 18 October 2020).
50 National Academies of Sciences, Engineering, and Medicine, Exploring Lessons Learned from a Century of Outbreaks: Readiness for 2030: Proceedings of a Workshop (Washington, DC, National Academies Press 2019) p 94.
51 G Brown and D Susskind, “International cooperation during the COVID-19 pandemic” (2020) 36(Suppl 1) Oxford Review of Economic Policy S64, S69.
52 M Kituyi, “COVID-19: Collaboration is the engine of global science – especially for developing countries” (World Economic Forum, 15 May 2020) <https://www.weforum.org/agenda/2020/05/global-science-collaboration-open-source-covid-19/> (last accessed 18 October 2020).
53 K Dale, “The Red Cross and Red Crescent Movement: Power Players in International and Domestic Natural Disaster Law” (2016) 25(1) Cardozo Journal of International and Comparative Law 111, 112.
54 ibid, at 115. The International Red Cross and Red Crescent Movement is composed of the following three essential units: the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (IFRC) and various National Societies.
55 M Hoffman, “Towards an international disaster response law” in P Walker and J Walter (eds), World Disasters Report 2000 (Geneva, International Federation of Red Cross and Red Crescent Societies 2000) p 145.
56 D Fischer, “The Future of International Disaster Response Law” (2012) 55 German Yearbook of International Law 87, 89.
57 IDRL Guidelines, para 1.
58 IDRL Guidelines, parts IV and V.
59 Sendai Framework, para 19.
60 KC Lauta, “Human rights and natural disasters” in S Breau and K Samuel (eds), Research Handbook on Disasters and International Law (Cheltenham, Edward Elgar Publishing 2016) p 107.
61 Telesetsky, supra, note 45, at 184.
62 For example, in Budayeva v. Russia, Application Nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgement (29 September 2008), para 129, the European Court of Human Rights affirmed the positive obligation of states under Art 2 of the European Convention of Human Rights to take effective preventative steps against threats to the right to life arising out of identifiable natural disasters.
63 D Fidler, “Disaster Relief and Governance after the Indian Ocean Tsunami: What Role for International Law” (2005) 6 Melbourne Journal of International Law 458, 460.
64 ibid, at 461.
65 See I Kelman, “Connecting theories of cascading disasters and disaster diplomacy” (2018) 30 International Journal of Disaster Risk Reduction 172, 175; L Comfort, “Disaster: Agent of Diplomacy or Change in International Affairs?” (2000) 14(1) Cambridge Review of International Affairs 277, 286.
66 G Venturini, “International Disaster Response Law in Relation to Other Branches in International Law” in A de Guttry, M Gestri and G Venturini (eds), International Disaster Response Law (Berlin, Springer 2012) p 58.
67 N Woods, “Good Governance in International Organizations” (1999) 5 Global Governance 39, 44.