Did the WHO Fail to Discharge Its Duties Under International Law?

Donald Trump’s decision to halt funding to the UN health body has renewed intense discussion on its role in handling the crisis.

Trump’s decision to halt funding to the World Health Organisation (WHO), amidst a global pandemic, has been rightly criticised as “ill-timed”. However, it has also renewed intense discussion on the role of the WHO in handling the crisis.  The White House has accused the WHO of severely mismanaging the crisis and helping China cover up the spread of the virus. In these circumstances it is perhaps apposite to revisit the role of the WHO during an infectious disease outbreak and ascertain whether, as the US President has suggested, it failed to duly discharge its responsibilities.

International health regulations

The principal instrument governing the role and responsibilities of the WHO during an infectious disease outbreak is the International Health Regulations, 2005 (IHR 2005). The IHR 2005, which was negotiated for almost a decade and intimately shaped by the outbreak of SARS, represented a paradigm shift in the international legal approach to infectious diseases which originated in the mid-nineteenth century with the International Sanitary Conference, and which, with minor revisions remained largely the same until the adoption of the IHR 2005. As a former legal counsel of the WHO has noted the IHR 2005 represents a dynamic and open-ended approach to public health risks based on co-operation and good faith of state parties, where the WHO assumes a central role in surveillance, risk assessment and framing a co-ordinated response.

Obligation to notify

Under Articles 6 and 7 of the IHR, 2005 each state party is required to assess events occurring on their territory and notify the WHO within 24 hours of the assessment of such event, including any “unexpected or unusual public health event” which “may constitute a public health emergency of international concern”. In determining whether a particular event may constitute a public health emergency of international concern, a state is required to be guided by the criteria listed in Annex 2 to the IHR 2005, namely whether the public health impact of the event is serious; the event is unusual or unexpected; there is a significant risk of international spread; or there is a significant risk of international travel or trade restrictions.

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In the event the answers to any two of the aforesaid questions are in the affirmative, it is deemed to be an event that may constitute a public health emergency of international concern.” Annexure 2 to the IHR 2005 also specifies that a “human influenza caused by a new sub-type” is unusual and may have a serious public health impact and therefore should be notified. The outbreak of a novel coronavirus was therefore likely an event which may have constituted a public health emergency of international concern and China was obliged to notify the WHO of the same within 24 hours of any such assessment.

Women wearing face masks ride shared bicycles, as the country is hit by an outbreak of the novel coronavirus, in Beijing, China February 15, 2020. Photo: Reuters/Stringer

Although the Chinese authorities notified the outbreak of a “pneumonia of an unknown cause”  to the local office of the WHO on December 31, 2019, multiple reports indicate that the virus outbreak had, in fact, already taken place much earlier, possibly in early November 2019, but the local authorities in Wuhan had suppressed information about the outbreak. As per these reports, the Chinese government censored and detained journalists and doctors that raised any alarm about the spread of the novel coronavirus. It has been suggested that this delay on China’s part in reporting the outbreak to the WHO, deprived the world of critical time, allowing the virus to spread globally through the congested air travel network during the busy holiday season.

The obvious question that arises is whether, in the absence of China notifying the outbreak to the WHO, the WHO could have taken cognisance of the outbreak, through any other means. This is one area, where the IHR 2005 made significant strides from its previous incarnations. Prior to the adoption of the IHR 2005, it had been noticed that states often failed to report outbreaks of notifiable diseases on their territory and that this severely handicapped the ability of the WHO to lead a coordinated response.

Accordingly, Article 9(1) of the IHR, 2005 expressly permitted the WHO to take into account reports from sources other than the state where the outbreak has occurred, including but not limited to non-governmental sources. However, the WHO is required to, “consult and attempt to obtain verification” of such information from the state where such an event is occurring before taking any action. More pertinently, under Article 9(2) of the IHR 2005, state parties can also inform the WHO within 24 hours of “receipt of evidence of a public health risk identified outside their territory”, which may cause an “international spread”.

Here the curious case of Taiwan assumes relevance. Taiwan is formally not a member of the WHO and its efforts to secure membership have been thwarted by Chinese authorities that refuse to recognise its sovereignty. Several persons, including the US President, have accused the WHO of ignoring an email from Taiwanese health authorities in later December “alerting the WHO of the possibility of human to human transmission of the novel coronavirus”. However, reportedly, the alleged email from Taiwanese health authorities was received after the notification by China and did not provide any new information, let alone warn of the possibility of human to human transmission of the virus.  In such a scenario it appears unlikely that the WHO is at fault.  However, this is ultimately a matter which requires an independent factual inquiry.

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Public health alert

Although a state may notify the WHO of events on its territory which “may constitute a public health emergency of international concern”, the formal declaration of a “public health emergency of international concern” ultimately rests with the director-general of the WHO. A ‘public health emergency of international concern” has been defined as an “extraordinary event” which has been determined to ”constitute a public health risk to other States through the international spread of disease” and which requires a “co-ordinated international response”.

The declaration of a “public health emergency of international concern” carries certain legal consequences, including reporting requirements for all states, answering the WHO’s request for information, etc.  More fundamentally, however, it functions as a public health alert or distress signal for the international community allowing for an international coordinated response to the emergency.

In declaring a public health emergency of international concern, the director-general, after consultation with the state where the event has occurred, is required to seek the “views” of the “emergency committee” constituted under Article 48 of the IHR 2005. The emergency committee comprises of experts selected by the director-general from the roster maintained by the WHO, on the basis of “expertise and experience” and with due regard to the “principles of equitable geographical representation”. However, the emergency committee usually comprises of one expert that has been nominated by the state where the event has been reported. Historically the “views” of the emergency committee, on the determination of whether a “public health emergency of international concern” exists, are simply followed by the director-general.

After the first case of the novel coronavirus was confirmed outside China on January 13, 2020, the WHO director-general on January 22 and 23, 2020, convened the first meeting of the emergency committee. At the meeting, the members of the committee expressed divergent views on whether the event constituted a “public health emergency of international concern”. Several members noted that the human to human transmission of the virus was unclear and given the restrictive and binary nature of the determination (i.e. whether it existed or not), it was too early to declare a “public health emergency of international concern”.

Medical officers spray Indonesian nationals with antiseptic as they arrive from Wuhan, China’s centre of the coronavirus epidemic, and before transferring them to the Natuna Islands military base to be quarantined, at Hang Nadim Airport in Batam, Riau Islands, Indonesia, February 2, 2020. Photo: Reuters

Accordingly, the committee decided to reconvene in approximately 10 days. In its recommendations to the WHO, the committee noted that, in view of the evolving situation of the novel virus, the WHO should consider a more nuanced system, which would allow an intermediate level of alert to be declared. In the meanwhile, the committee requested China to furnish it with more information etc.

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At the second meeting of the “emergency committee” convened on January 30, 2020, the committee members noted that there had been three cases of human to human transmission outside China and agreed that the outbreak now met the criteria of a ”public health emergency of international concern”.  The committee thereafter issued advice to the WHO, China, other countries and the global community and recommended that they are issued as temporary recommendations. The director-general accordingly formally declared the outbreak of the coronavirus as a “public health emergency of international concern” and accepted the advice of the emergency committee as temporary recommendations under the provisions of the IHR.

The hesitation of the emergency committee in declaring a “public health emergency of international concern” has been criticised in some quarters as revealing an extremely deferential attitude towards China. Since the declaration is meant to fundamentally operate as a public health alert to the international community, the delay in its declaration may have proved vital. However, it is important to remember that the committee comprised of experts from US, Thailand, France, South Korea, Japan, Canada, Netherlands, Singapore etc and it is unlikely that China could have, on its own, resisted the declaration of a public health emergency of international concern”.

An unfortunate aspect of the entire episode is that the deliberations of the emergency committee meetings are confidential and only a brief statement is issued at its conclusion. Accordingly, it is not possible to understand the basis on which the committee concluded that the criteria for the declaration of a ”public health emergency of international concern” were met or not.  To facilitate accountability, it may be necessary to improve the transparency of the process. Nevertheless irrespective of the differing views on the declaration, the emergency committee did recommend to the WHO to consider a more nuanced system of alert, specifically an intermediate alert which would better reflect the severity of the outbreak, its impact and the measures required, and that would facilitate an improved international co-ordinated response.

Contrary to Trump’s assertions, the WHO has been at the forefront of the response to the coronavirus outbreak.  While there could certainly have been improvements in its response, the WHO has, by and large, complied with its responsibilities under the IHR.  Since January, the WHO has been closely monitoring developments in affected countries, providing daily situation reports, issuing advisories and technical guidance.

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Perhaps less well-known, are the efforts of the WHO in organising international clinical trials of potential treatments, facilitating the procurement of essential items, such as ventilators and personal protective equipment, in over 120 countries. If at all, the outbreak highlights the need to revise the IHR to better reflect modern-day realities of infectious diseases, so that the international community can better respond to the next outbreak.

Jay Manoj Sanklecha is an LL.M in international law (summa cum laude) from the IHEID, Geneva and B.A/LL.B (honours) from NUJS, Kolkata. Views expressed are personal.