SSRN-id3561650 - International law on pandemic response PDF

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MPIL RESEARCH PAPER SERIES | No. 2020-07

INTERNATIONAL LAW ON PANDEMIC RESPONSE: A FIRST STOCKTAKING IN LIGHT OF THE CORONAVIRUS CRISIS Armin von Bogdandy, Pedro A. Villarreal

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3561650

MPIL RESEARCH PAPER SERIES No. 2020-07

INTERNATIONAL LAW ON PANDEMIC RESPONSE: A FIRST STOCKTAKING IN LIGHT OF THE CORONAVIRUS CRISIS AUTHORS Armin von Bogdandy, Pedro A. Villarreal EDITORIAL DIRECTORS Armin von Bogdandy, Anne Peters EDITOR-IN-CHIEF Raffaela Kunz TECHNICAL ASSISTANCE Verena Schaller-Soltau Angelika Schmidt

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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3561650

ABSTRACT The coronavirus (SARS-CoV-2) pandemic is currently raging throughout the world. The ensuing crisis has acquired a multidimensional nature, affecting all levels of society. Measures adopted by domestic authorities have included a broad spectrum of restrictions: from general alerts to mandatory quarantines and isolations of individuals, to blanket travel bans and cordoning-off of cities and, in some cases, countries. Many governments have declared states of emergency, thereby assuming exceptional powers. This dire crisis leads to our core questions: What are the relevant obligations, powers and procedures under public international law? Have they been complied with? What role, if any, has international law, via its institutions, played so far? The World Health Organization, a specialized agency of the United Nations, is the international institution with a core mandate in issues of global health. Moreover, the International Health Regulations (IHR) is the main legally binding instrument laying down rules for the cross-border spread of disease. Against this backdrop, in order to address the core questions, this paper provides an overview of the IHR in light of current issues and disputes. The paper then evaluates those issues and disputes under other regimes of international law, such as human rights, trade law, peace and security law, and the law of development finance. Lastly, the paper offers conclusions by way of answers to the research questions.

KEYWORDS: Coronavirus pandemic, COVID-19, SARS-CoV-2, World Health Organization, International Health Regulations, international health law, human rights, mass quarantines

MPIL Research Paper Series No. 2020-07

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This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3561650

International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis Armin von Bogdandy, Pedro A. Villarreal*

Contents 1.- Public International Law and Pandemics ............................................................................................. 1 2.- The International Pandemics Law of the WHO .................................................................................... 3 A. The Longstanding Quest for International Regulation ...................................................................... 3 B. Essentials of the International Health Regulations ........................................................................... 6 C. PHEIC Declarations: Governance By Information ............................................................................ 11 3.- International Law and Pandemics Beyond the WHO ......................................................................... 16 A.

Human Rights ............................................................................................................................. 17

B.

International Trade Law ............................................................................................................. 21

C.

The Securitization of Pandemics ................................................................................................. 22

D.

The Pandemic Emergency Financing Facility ............................................................................... 24

4. Outlook ............................................................................................................................................. 25

1.- Public International Law and Pandemics In December 2019, a new virus was identified circulating in the population of the city of Wuhan, China, causing atypical pneumonia. After a few days, it started spreading throughout the world. A mere three months later, the pathogen has brought world society to an unprecedented reduction of activities. The virus, later designated as SARS-CoV2, triggered a *

Armin von Bogdandy and Pedro A. Villarreal are Director and Senior Research Fellow, respectively, at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. The authors wish to thank Martin Jarrett, Tom Sparks, Franz Ebert, Giacomo Rugge, Achilles Skordas, Davide Paris, Julia Emtseva and Federica Violi for their valuable input and revision of initial drafts. Special gratitude is also extended to Raffaela Kunz, Angelika Schmidt and Yvonne Klein for deep editorial work. All websites last accessed 26 March 2020.

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pandemic. To date, it has claimed tens of thousands of lives. Although not comparable with the 1918-1919 influenza pandemic with its more than 50.000.000 deaths,1 the ghost of this event looms large.2 In terms of its economic consequences, it might be worse than those of the 2008 financial crisis.3 As the coronavirus pandemic rages in, nations throughout the world scramble to enhance their responses. Various measures have brought a broad spectrum of restrictions: from general alerts to mandatory quarantines and isolations of individuals, to blanket travel bans and cordoning-off of cities and, in some cases, countries. Many governments have declared states of emergency, thereby assuming exceptional powers. This dire crisis leads to our core questions: What are the relevant obligations, powers and procedures under international law? Have they been complied with? What role, if any, has international law, via its institutions, played so far? The World Health Organization (WHO) is the main international institution in the field. Firstly, it issued the International Health Regulations (IHR) of 2005, which lays down rules on how to deal with pandemics, some of which have not been complied with, to the detriment of all. Moreover, the WHO has been actively engaged with the coronavirus pandemic by delivering statements, declarations and guidelines, with examples being the praise it has heaped on the Chinese government for the restrictive measures that it has adopted.4 These activities continue on a daily basis. In addition to the WHO, other international regimes are also in play: human rights, trade, international peace and security, and development finance. Against this backdrop, the paper is structured as follows: the second section addresses our core questions with a view to the legal regime within the WHO. The third section, in turn, looks at the relevance of those other legal regimes. Lastly, the fourth section offers conclusions in light of the research questions.

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David Morens, Jeffery Taubenberger, “The Mother of All Pandemics Is 100 Years Old (and Going Strong)!” (2018), 108 American Journal of Public Health, 1452. An assessment shared in recent empirical research. See Neil Ferguson et al, “Report 9: Impact of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand” (2020), 14-15. https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gidafellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf. 2 Joachim Müller-Jung, “Eine unvergleichbare Pandemie”, Frankfurter Allgemeine Zeitung, 14 March 2020. 3 “Much of global commerce has ground to a halt. Business and the pandemic”, The Economist (21 March 2020), available at https://econ.st/2Jd0jVb. 4 Quoting statements by WHO official Bruce Aylward, see Kai Kupferschmidt and Jon Cohen, “China´s aggressive measures have slowed the coronavirus. They may not work in other countries”, 2 March 2020, available at https://bit.ly/3bvw0W6

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2.- The International Pandemics Law of the WHO A. The Longstanding Quest for International Regulation There are few issues of global alarm that match pandemics. Accordingly, it is no surprise that already in 1851, in one of the first attempts of international governance, a group of mostly European states gathered in Paris to craft a common framework for harmonizing responses to the international spread of diseases. Back then, the most devastating diseases were communicable in nature: pandemics caused by cholera and the plague often spread through several countries.5 The most common measures were quarantines of incoming travelers and ships. The aim was not full coordination of how to deal with outbreaks altogether. Rather, the main goal was more specific, most particularly to harmonize measures taken by states against international trade and travel. Disparities between the measures adopted by states were disrupting commercial activities. 6 As the main global mode of transportation was by sea, the conference was focused on measures restricting maritime transportation, particularly at the moment of arriving into foreign ports. The project was unsuccessful. At the diplomatic level, several states were simply unwilling to cave in to their police powers to confront outbreaks.7 What remained was the understanding that agreements would become necessary. Indeed, some very specific conventions on the spread of some infectious diseases were agreed in the following decades.8 In 1902, the first international organization specialized in health was created: the PanAmerican Health Organization (PAHO). A few years later, in 1907, the Office Internationale d’Hygiène Publique emerged. Both of their mandates included issues of disease outbreak control. They are the precursors of the WHO and showed the way to the post–First World War “move towards institutions”. 9 After the Second World War, the emergence of an international consensus on multilateral institutions led to the creation of a series of international organizations. In this epoch, the WHO was created as a specialized agency for all matters of international health. Its Constitution was approved in 1946, and it entered into force in 1947. The WHO superseded the 5

Neville M Goodman, International Health Organizations and Their Work (Churchill Livingstone, 1971), 38; Valeska Huber, “The Unification of the Globe by Disease? The International Sanitary Conferences on Cholera, 1851-1894” (2006), 49 The Historical Journal, 454; Stefania Negri, “Communicable disease control”, in Gian Luca Burci and Brigit Toebes (eds), Research Handbook on Global Health Law (Edward Elgar 2018) 269. 6 Neville M Goodman, International Health Organizations and Their Work, note 5, 36. 7 Ibid, 37-38. 8 David Fidler, “From International Sanitary Conventions to Global Health Security: The New International Health Regulations” (2005), 4 Chinese Journal of International Law, 332-333. 9 David Kennedy, “The Move to Institutions” (1987), 8 Cardozo Law Review, 841-842.

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Office Internationale d´Hygiène Publique, and integrated the PAHO as one of six regional offices, all of which enjoy a relatively high degree of autonomy.10 Today, the WHO is the international organization with a direct mandate in the field of pandemics.11 Article 2 of the Constitution of the WHO frames its overall function as “the directing and co-ordinating authority on international health work”. It employs more than 7000 people and runs over 150 country offices. The Constitution of the WHO provides for the main decision-making procedures within the organization. In comparison to other international organizations, it enjoys extensive powers. Its Articles 21 and 22 stipulate the competence to issue regulations binding for all the Member States without national ratification procedures. This represents a truly atypical feature in the landscape of international organizations. The norm-creating powers rest in the organization’s main body, the World Health Assembly, which can enact them by a two-thirds majority of Members present and voting,12 subject to a possible opt-out by dissenting countries.13 This shows enormous trust in technical rule-making fostered by experts, technocrats and diplomats. Consequently, it is all the more detrimental to its authority if the WHO is accused for acting, or failing to do so, due to reasons not strictly related to health. The long-standing criticisms due to “politicization” - broadly understood - and of regulatory capture resonate in public fora.14 Examples include complaints by the United States government about the WHO´s direct intervention in healthcare policies in Palestine15 and past clashes with the pharmaceutical industry over the Model List of Essential Medicines in 1977.16 Whenever its decisions are perceived publicly as anything other than technical, their legitimacy becomes contested.17 In the first decades of its work, the WHO had an emphasis on communicable disease control.18 The focus led to what has arguably been its greatest success so far, the smallpox eradication programme. Technological advances in medicine and public health then brought

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On the evolution of PAHO´s autonomy within the WHO´s governance structure, Tine Hanrieder, International Organization in Time (OUP 2015). 11 Article 2, Constitution of the WHO. 12 Article 60(a), Constitution of the WHO. 13 Article 22, Constitution of the WHO. 14 Kelley Lee, The World Health Organization (Routledge 2009), 126-128; Charles Clift, What´s the World Health Organization For? Final Report from the Centre on Global Health Security Working Group on Health Governance (Chatham House, 2014) viii-x. 15 Gene Lyons, David Baldwin, Donald McNemar, “The “Politicization” Issue in the UN Specialized Agencies” (1977) 32 Proceedings of the Academy of Political Science, 89. 16 Fiona Godlee, “WHO in Retreat: Is it Losing its Influence?” (1994), 309 BMJ, 1495. 17 Sudeepa Abeysinghe, Pandemics, Science and Policy. H1N1 and the World Health Organization (Palgrave Macmillan, 2015), 133-171. 18 Kelley Lee, The World Health Organization, note 14, 46-70.

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the theory of epidemiologic transition, 19 which posited that non-communicable diseases were gradually overtaking communicable diseases as the main global health risks. New regulatory challenges in the field of international health took the stage. It entered into areas where no “magic bullets”, such as immunizations, were available. On issues such as nutrition and tobacco control, the WHO started facing challenges which require different institutional tools.20 Working in these “new” areas brought the WHO face-to-face with entrenched economic interests. As the WHO tackled these issues, campaigns focused on communicable diseases did not recede. The promotion of immunization and sanitation campaigns continued to yield results. But a new pandemic appeared in the 1980s: HIV/AIDS started spreading throughout the globe.21 The WHO´s deficient response, as well as the absence of any international instrument dealing with such a novel disease, led to an epiphany. The creation of a separate agency specializing in this issue, UNAIDS, was seen as an open critique of the WHO, as it is an issue that fell within its core mandate. Indeed, the WHO is an institution that has attracted critique from all sides. Historically, it could not escape the Cold War divides in the 1970s and 1980s. The organization paid a hefty price for what the United States saw as “choosing sides” in favor of what it considered to be a “socialized” vision of medicine with the Declaration of Alma-Ata of 1978, a document which consecrated the primary health care strategy.22 Its shift towards a more private sector-oriented perspective in the 1990s also provoked controversies.23 Further, its ineffective response to major crises in the past decades led to claims of mismanagement. As noted by Kelley Lee, past failures to react timely due to the convoluted internal governance led to public perceptions of the WHO as an agency that “knows everything, but does nothing”.24 In light of these sustained critiques, the WHO is not acting as a leader in the current crisis, but with a rather low profile, nevertheless making a crucial difference.

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Simon Rushton, “Global Governance Capacities in Health: WHO and Infectious Diseases”, in Adrian Kay and Owain Williams (eds), Global Health Governance: Crisis, Institutions and Political Economy (Palgrave-MacMillan, 2009) 60. 20 Mateja Steinbrück-Platise, “The changing structure of global health governance”, in Leonie Vierck, Pedro A. Villarreal and Katarina Weilert (eds), The Governance of Disease Outbreaks. International Health Law: Lessons from the Ebola Crisis and Beyond (Nomos, 2017) 83-111. 21 Bradly Condon and Tapen Sinha, Global Lessons from the AIDS Pandemic. Economic, Financial, Legal and Political Implications (Springer, 2008). 22 Marcos Cueto, “The Origins of Primary Health Care and Selective Primary Health Care” (2004), 94 American Journal of Public Health, 1864-1866. 23 Mateja Steinbrück-Platise, “The Changing Structure of Global Health Governance”, note 20, 90-92. 24 Kelley Lee, The World Health Organization, note 14, 82.

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B. Essentials of the International Health Regulations Legal commentators have critiqued the organization´s rather restrained role in creating new norms under its Constitution.25 Its main instruments adopted under Article 21 are the International Sanitary Regulations, the International Health Regulations (IHR), and the Nomenclature Regulations.26 The emergence of Severe Acute Respiratory Syndrome (SARS) in 2002 gave impetus to the negotiation efforts for revising the IHR.27 The IHR of 1969 was considered to be inadequate for the realities of the XXI Century. The 58th World Health Assembly approved the revised IHR in 2005. It was innovative for several reasons. 28 It was meant to usher an era of rules-based disease surveillance and response, where state sovereignty gives in to shared goals of the international community.29 Its obligations and protocols reflect a condensed understanding of best practices developed through many decades of diplomatic negotiations, expert input, and also on-the-ground operations in health campaigns. It covers all WHO Member States (194) plus Liechtenstein and the Holy See. This includes all the major powers, as well as all countries affected by the coronavirus pandemic.30 The IHR is a detailed and encompass...