International institutions are often perceived as neutral bodies created for the purpose of advancing the general interests of humanity at large. However, such bodies operate within the limits of international law, which was developed with the purpose of regulating conflicting interests and the resultant unilateral behaviour of sovereign states. So, naturally, the principle of sovereignty came to assume paramount importance in the international law system. However, this, as we would see with the help of this article, has led to International institutions such as World Health Organisation (“WHO”), not being poised to handle crises of global magnitude such as Pandemics.
World Health Organisation
WHO is a specialized agency within the UN and is responsible for overseeing international public health. Considering the importance of the organization in the organization of a coordinated and efficient response to a contagious and fatal disease by states, one would expect the organization to have much leeway in implementation of the measures necessary to protect people from health hazards, especially those that can spread across borders. However, the WHO lacks adequate methods to impose measures on states, even when they may be necessary to protect people from health threats. For instance, WHO was rendered helpless when China decided to disclose vital information related to the pandemic as the former lacked provisions that penalize such reckless actions. This is further amplified by the fact that the World Health Assembly (WHA), a policy-making organ of the WHO which has the authority to formulate treaties with respect to all the mandates of the organization, has been unable to bring into effect treaties due to the cumbersome treaty-making process.
Article 19 of the WHO Constitution requires a two-thirds vote of the WHA for the adoption of a treaty, which is followed by a time-consuming ratification process. Further, amendments also require processes that have not been put to the test and remain uncertain. In fact, only one treaty, namely the International Framework Convention on Tobacco Control (2003) which deals with tobacco-related diseases, has been adopted until now under Article 19. In times of a global crisis such as a pandemic, these limitations can significantly hinder the ability of the institution to carry out the necessary measures, which would be detrimental to common global interests.
Even when there might be the necessary laws and policy in place to tackle health emergencies, implementation would still be an uncertainty due to the lack of adequate methods of enforcement. So, if a state does not fulfill its obligations or violates the regulations of the WHO, the latter does not have an option of penalizing the offenders, leading to limited success in eliciting cooperation from states in which threatening diseases might surface and whose interests might be impaired from the economic or political repercussions of health and safety measures. For instance, when the Severe Acute Respiratory Syndrome (SARS) outbreak occurred in China in 2002, government officials tried to conceal vital information pertaining to the virus in order to cover up the outbreak. Severity of the situation was revealed only when a military doctor leaked information regarding the outbreak. Although the spread of the disease was eventually contained, the lack of penalization for such reckless behaviour would have emboldened states to disobey the measures to meet their interests.
Exploring the Foundations of Structural Weakness
While the SARS outbreak was contained, the world wasn’t so lucky in the case of COVID-19. Had there been mechanisms to penalize states which violate the WHO regulations, China might not have tried to withhold information that could have been vital in containing the virus early on and saving the lives of hundreds of thousands of people. WHO, along with a few other international institutions that deal with certain vital matters, need to be strengthened so as to protect global interests. The lack of proper containment, adequate health measures, and transparency in a state suffering from an outbreak of an infectious disease can have deleterious consequences for the entire world.
Globalization has exacerbated the vulnerability of the world when it comes to the spread of infectious diseases, due to erosion of the traditional geographical, temporal and cognitive boundaries. The SARS outbreak was an ideal illustration of why international cooperation is required in dealing with crises which do not respect conventional boundaries as international law does. The lack of an international mechanism to implement the necessary measures in such situations, to safeguard the sovereign interests of individual states, can be the gateway of a global crisis of enormous proportions, which may be inimical to their interests in the longer run as the world has been painfully reminded during the COVID-19 crisis. Such crises can also give rise to economic and political repercussions that can acquire a magnitude of monumental proportions, evident by the global economic recession caused by the pandemic.
Several other factors also come into play that ensures that agreements, meant to initiate action against threats of global relevance, are not effectively implemented. First of all, individual conventions usually require demanding home-country ratification processes and, since many of them are non-self-executing, need domestic implementing legislation before they can be enforced. This allows many states to disregard their commitments when it fulfils their own personal interests, even when they might be detrimental to the interests of humanity at large. Secondly, positivist notions of international law require that states be bound only when they have given their express or tacit consent to be subject to an international right or obligation. So, the “grant of authority” that creates a delegation is based upon the principle of sovereign consent, according to which international law that binds states “emanates from their own free will as expressed in conventions or by usages generally expressed in conventions or by usages generally accepted as expressing principles of law.” Sovereign consent constitutes a central principle of international law. Thirdly, international treaties sometimes lack domestic enforcement mechanisms because they have been brought into effect by international bodies.
While ideally states should be taking initiatives to protect their populations from global health risks by any means possible, certain states consider the economic and political costs of doing so to be unacceptable. Furthermore, even if states accept obligations, many international treaties do not necessarily contain clear, detailed, or specific rules regarding such obligations. Often they lay down only a framework of general principles or requirements for states ‘to take measures’ or ‘all practicable measures’, as is the case of the 1992 Framework Convention on Climate Change. This is exacerbated by the fact that most multilateral treaties allow any party to opt out of regulatory annexes, amendments, or additional protocols, either by withholding their consent or through objection procedures. This prevents the adoption of stronger control measures, if they feel that the same is contrary to their interests, even when they accept the principles underlying the measures. Such limitations often come in the way of effective coordination among states when dealing with challenges that have global repercussions.
Even when threats like infectious diseases, sometimes taking the shape of worldwide pandemics, undermine traditional concepts of the state and sovereignty, the structural weakness of WHO becomes a huge hurdle in tackling such threats.
A Vision for Global Health
In Global Health Law, his landmark treatise on the law and ethics of global health management, the veteran international health law expert Dr. Lawrence O. Gostin develops what he calls ‘global health with justice’. This is a programme which calls upon the global community to unite and rationalize its fragmented and often times conflicting regimes of governance — including not only regimes traditionally conceived of as health-related but also the directly relevant legal regimes of trade, environmental protection, and intellectual property, among others. The aim would be to empower the World Health Organisation to further not only disease-specific ventures when grave crises have already arisen, but a unified vision of justice in global health, that ensures widespread and equitable access to environments, treatment, and other resources vital to human health.
In order to do this, Gostin recommends what is considered the equivalent of the New Deal for global health policy: the Framework Convention on Global Health. Such a Convention would assure to all persons a right to health, encompassing both the environmental and medical conditions required for healthy existence. Modelled along the lines of previous similar Framework Conventions, including and especially the successful Framework Convention on Tobacco Health, it prescribes: State commitment to concrete norms and specific time-bound targets regarding policies that bear on health; strong international institutions such as the WHO monitoring empirical State progress; reliable health financing mechanisms geared to achieve equitable apportionment of responsibility among countries as well as just allocation of resources; and a rationalization of norms, laws, and policies impacting health directly or indirectly across municipal and international levels. The Framework Convention on Global Health has been championed by highly placed experts and activists across the world, including then United Nations Secretary-General Ban Ki-Moon. Given the ever more evident need for a reliable and internationally answerable yet empowered authority on issues of health, the Convention seems to be one of the best possible choices.
Views are personal.
Image credits: Provided by the author.
ABOUT THE AUTHOR
Somanshu Shukla and Rishabh Jain are currently pursuing law from National Law University Delhi.
Justin Kamen, Prosecuting the Pandemic: Strengthening International Public Health Law, 5 Eyes on the ICC 159, 160 (2008).
Justin Kamen, Prosecuting the Pandemic: Strengthening International Public Health Law, 5 Eyes on the ICC 159, 159 (2008).
Patricia Birnie, Alan Boyle and Catherine Redgewell, International Law and the Environment (3rd ed., 2009) 17.
Ibid at 18.