WHO’s Legal Mandate Is Weak In Responding To COVID-19 Emergency; But Changes Are Up To Member States
The World Health Assembly in Geneva, Switzerland.

In the wake of the COVID-19 pandemic, there could be “a window of opportunity… that would be suicidal to miss” to revise the International Health Regulations that govern countries’ behaviour during health emergencies, said Gian Luca Burci, former World Health Organization head legal counsel and now professor of international law, at a panel hosted by the Geneva Graduate Institute and Global Health Centre.

The present system may have led to delays in ramping up levels of alert at key points in the crisis to an international health emergency, Burci suggested at Tuesday’s panel entitled “What’s law got to do with COVID-19.”

“The system of alert right now is either we have an emergency or we have nothing. There is a growing consensus [that this system must be replaced by] something much more incremental,” Burci said.

The International Health Regulations (IHR), the legal framework for WHO’s emergency coordination and countries’ response, also has a “very weak” system for commanding sovereign states’ compliance with its provisions to prevent, prepare and respond to infectious disease outbreaks, Burci underlined.

But it remains up to Member States of the World Health Assembly to decide whether the WHO should wield more power, said Steven Solomon, principal legal officer for governing bodies at the World Health Organization.

As the only binding international law that governs international and member state response, and last updated in 2005 under very different global conditions, it is time for IHR to be revised, agreed Solomon and Gian Luca Burci. The question is how? 

The World Needs The WHO For Leadership And Coordination 
Top: Steve Solomon, current WHO Principal Legal Officer.
Bottom: Gian Luca Burci Former WHO Principal Legal Officer and Professor of International Law.

“To respond with two words, what can be done now [by WHO within the IHR system]…is leadership and coordination”, said Solomon.

Yet despite WHO’s attempts to coordinate such outbreak response for the world, countries have not always complied.

Export restrictions, which can block critical supply chains for essential products like personal protective equipment or medicines, have been adopted by 28 countries despite WHO guidance that such barriers impede efficient emergency allocation of resources, said Sueri Moon, Co-Director of the Geneva-based Global Health Centre.

“While many recommendations by the WHO have been implemented at the national level,” said Burci, the same level of adherence has not been observed in the international arena, with regards to trade, travel and related areas, “and we have to wonder why,” said Burci.

Countries have not complied because they simply do not have the incentive to do so under the current IHR rules, he added. 

“The system of accountability is weak. States can do whatever they want, without much accountability and with impunity,” Burci said. “There is resistance [by the WHO] to naming and shaming. There is no system of assessment of compliance [decreasing incentive for members to comply]”, he added.

Needed: “Agile” System For Resolving Trade Desputes

To address some of the trade barriers that have emerged during the emergency, the IHR would also requrie an ‘agile’ mechanism for settling trade disputes. The current system is “very weak”, and with countries shutting down their exports in a desperate attempt to prioritize sovereign supply, such revisions have become more important than ever. 

“There is no system of dispute settlement. The one we have is very weak. Look at what’s happening now, with border closures and trade limitations. These are the seeds of major dispute…There are evident gaps in travel restriction and trade restriction policies,” said Burci. 

At the broader level, a stronger compliance assessment system, integrated into the IHR, could make Member States more likely to comply with WHO recommendations because their responses to outbreaks would be evaluated and communicated to the public, agreed Solomon and Burci.

Public scrutiny, or ‘naming and shaming’, could be a useful tool to improve the WHO’s capacity to lead and coordinate an effective response at an international level.

An enforcement compliance mechanism can be created if Member States were interested in creating one, suggested Solomon. The WHO would also be ready to support countries if they decided on a new Mandate for that within the IHR context.

“Member states or countries decide…[if] something needs to be changed; that’s certainly an area where WHO would support, but that mandate has to come from Member States. That mandate can only be provided from the countries themselves,” he said.

The IHR revisions mentioned by Solomon and Burci, ranging from a compliance assessment to an improved trade dispute resolution mechanism, are not, however, compatible with the current architecture of WHO financing.  When most of its budget is controlled by a handful of large stakeholders, WHO’s hands are often tied in terms of inspecting, auditing or compelling countries to adopt emergency measures. 

Legal Experts Call For Sustainable WHO Financing Mechanism 

Top contributors to WHO’s Budget (2018)

Funding was dramatically highlighted last week when US President Donald Trump decided to suspend US funding, which amounts to about 15% of WHO’s annual budget. In addition, the regular annual “assessed” contributions of member states comprise only about one-fifth of the total WHO budget, while the rest comes from national “voluntary” commitments, which may be short-lived and are often earmarked for specific purposes.  

Solomon and Burci advised Member States to invest in a “sustainable financing mechanism” with a view to strengthening public health systems in the long-run.

“It’s irrational to have an organization like the WHO funded at 82% with voluntary contributions. You cannot have a fire brigade that has to raise money when it catches fire, that is irrational.”

Furthermore, it is important that funding be directed more strategically toward long-term strengthening of core capacities of public health systems like prevention, surveillance and response to disease outbreaks, the two legal experts said.

“Investments cannot immediately respond to a short term profit or political gain…Long term investment in public health care [is needed]…I hope that the WHO would play a role in that”, said Burci.

“It is not a do it once and it’s done”, said Solomon. “Maintaining core capacities is much more like brushing your teeth. It needs to be done every single day in a determined way”.

Image Credits: WHO/L. Cipriani, WHO .