Bogdandy, Armin von

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The Law of the WHO, COVID-19 and theMultilateral World OrderArmin von Bogdandy 2020-04-24T08:37:22A new virus, SARS-CoV-2, emerged in the Chinese city of Wuhan at the end of2019. Infected persons developed an atypical form of pneumonia, later known asCOVID-19. The pathogen created a pandemic, with fatalities throughout the world,and also led to the adoption of restrictive measures which were, until recently,unthinkable, as well as fostering new political conflicts. Even the path of themultilateral order in its current form is at stake. For a take on these issues underinternational law, the legal regime of the World Health Organization (WHO) and itsresponse to the pandemic provides an insightful access.The WHO has given substance to the current multilateral order since 1948 and, afterthe fall of the Berlin Wall, even became a beacon of hope for global governancethat truly caters for humans. Its powers are more extensive than that of most otherglobal organizations. It certainly cannot impose lockdowns, nor distribute hospitalbeds globally, or even prescribe medical treatments to individual patients. However,it can enact binding regulations by a majority of vote of its World Health Assembly,which is the main decision-making body composed of representatives from itsMember States. In 2005, under American leadership, the Assembly approvedthe International Health Regulations (IHR), which sets a detailed guidance forinternational cooperation in the event of epidemics and pandemics. It constitutes,as one can see in the current pandemic, an indispensable component of any globalresponse to public health emergencies. Moreover, the WHO has decided to labelthe current crisis as a pandemic. This way, it provides a cognitive framing for thegovernments of its 194 Member States, thereby helping their handling of the crisis.The WHO has also published key recommendations on how to deal with the crisis,and its silence on certain issues is also of great legal importance.Of particular relevance for the WHO’s embedding in the current world order ofliberal multilateralism is the relationship of its rules and recommendations withregards to human rights, particularly those of the International Covenant on Civil andPolitical Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR),respectively. The most critical issues are currently measures imposing mandatorysocial distancing. As in previous emergencies the WHO has recommended theimmediate isolation of infected persons, and quarantine of those who were incontact with them. However, the organization has not issued a recommendation toimpose mass quarantines or even lockdowns, although this specific tool is includedin the list of possible measures under Article 18 IHR. This approach displays asensitivity towards human rights, and is more fleshed out in the WHO’s currentinterim guidance on the matter. Mandatory isolations and quarantines do severely restrict multiple liberties. Giventhis severity, for such measures to be compatible under human rights, a general- 1 -risk to society from the pathogen is not sufficient. Rather, the general requirementis that the affected person presents an individualized risk. Nevertheless, in thecurrent pandemic, several countries have imposed so-called “lockdowns” whichcome without such individual assessments. Some fear this may be a sign of a moregeneral trend towards a more illiberal world order. At the same time, there is noquestion that human rights obligations to protect human lives require implementingeffective measures for this purpose. One of these human rights is the right to health,as enshrined in Article 12.2(c) of the ICESCR.  Accordingly, domestic public authorities must make highly sensitive decisions.Recommendations from the WHO may be of importance for their human rightscompatibility, as shown in Article 26 of the Siracusa Principles on the Limitationand Derogation Provisions in the International Covenant on Civil and PoliticalRights (“Siracusa Principles”). Against this background, it is extremely relevantfor the further development of a liberal world order that the WHO does not openlyposition itself in this matter. While it praised the governments of China and Italy fortheir lockdowns, so far it has only recommended, as a matter of general guidance,individualized measures and has stated that the most severe restrictions should besquared to the specific contexts, including the distinct legal frameworks. Therefore,the WHO does not claim to settle the politically, and also constitutionally, verysensitive question of lockdowns. That seems wise: the multilateralism of the currentworld order does not advocate global institutions’ takeover of the central functions ofstates. The proper function of global institutions is a cooperative complementarity inlight of common challenges and goals.The President of the United States puts exactly this role of the WHO into question.He has argued that the organization is responsible for the extent of the pandemic,has hindered the adoption of effective measures and became an instrument ofChinese policy. Thus, he wants to heavily weaken the WHO´s role by withdrawingcrucial financial support.  It is indeed still unclear whether in December 2019 the Chinese government fulfilledits obligation under Article 6 of the IHR, which mandates to notify the WHO within 24hours of „all events which may constitute a public health emergency of internationalconcern within its territory”. There are substantiated reports of delays in the processof information-sharing at the beginning of the SARS-CoV-2 pandemic. It also seemspossible that the WHO did not forcefully insist on the required clarifications by China.  However, it is hardly plausible that this has been the only factor leading to “so muchdeath” in the United States, as its President claims. President Trump has yet toproduce any evidence of a causal link and, given the U.S. government´s inexplicabledelay in adopting measures against the pandemic, which only came about in March,this line of attack holds little water.Trump’s second allegation relates to the WHO´s recommendation to restrainfrom adopting travel restrictions in the current crisis. Apart from the fact that thisrecommendation has hardly been followed, it is legally unsound to argue that thisnon-binding recommendation could have caused harm. Article 43 of the IHR clarifiesthat “additional health measures” of states remain permissible. The only obligation- 2 -is to inform the WHO about their adoption, as well as to justify the more far-reachingrestrictions with a scientific basis.President Trump’s anger can be better understood against a background of ageopolitical competition with China, in which the United States is not boding well atthe moment. The most recent Chinese propaganda shows how its authorities aimat demonstrating their political model’s superiority over the West, and especiallyover the United States, through a better management of the pandemic. The Chinesegovernment now presents itself as a model that should be followed across the globe.Accordingly, one can assume that it expects to inform the global standards of goodgovernance which multilateral organizations should advocate to other states in theworld.It is therefore noteworthy that the officials of the WHO, including its Director-General,have praised the Chinese government’s decisions as well as their officials’ work.However, they have done the same with the Italian government and even the U.S.President himself. Such praise needs to be seen in light of the fact that the WHOas an international organization does not enjoy the powers of a world government,but remains highly dependent on the good will of Member States. What is trulyimportant in this context is that the WHO has not recommended on all states to go“the Chinese way” regarding the massive restrictions on liberties.Overall, most of the academic specialists and commentators of global health givegenerally positive testimony on the WHO’s response to the pandemic under Director-General Ghebreyesus so far. Of course, there are issues to be clarified, for instance,the reasons why the Director-General did not declare a public health emergencyof international concern already on 23 January, 2020, but only on 30 January.Deference to China may certainly be one explaining factor. Also a lack of clarity inthe WHO’s use of the term “pandemic” (as seen here and here) led to confusionamongst Member States on COVID-19’s nature. For these and other reasons, afterthe pandemic subsides, an independent Review Committee (based on Article 50of the IHR) should scrutinize the measures adopted by the WHO, as was alreadydone after the H1N1 pandemic of 2009-2010 and the West African Ebola crisis of2014-2016.The WHO should moreover play a clarifying technical role in the competitionbetween political regimes with the aim to advance the global discourse on how tobetter protect against pandemics in the future. For this goal, it should, among otherthings, provide reliable figures on how many people have succumbed to the diseasein different countries. As always, the WHO depends for that on reports by nationalauthorities, and governments are likely to be tempted to embellish these figures.But Article 9 IHR enables the WHO to take into account not only official reports, butalso “other reports” related to the on-the-ground situation in a country. Since, even inChina, social media reports on deaths can help to identify inconsistencies in officialnumbers, the WHO can and should look into “other reports”, request clarificationfrom state authorities and, if necessary, publicize non-cooperation (Article 10 IHR).Such transparency and visualization of “blind spots” serve the interests of globalhealth.- 3 -This would entail a welcome development in the WHO’s approach towards itsMember States. In the past, it has mostly relied on reports by national authorities,leading to dire consequences. For example, during the initial stages of the WestAfrican Ebola crisis in April 2014, the WHO limited its assessment to the Guineangovernment’s inaccurate accounts and refused to consider reports by NGOs, namelyMédécins sans Frontières, on the severity of the outbreak. The resulting delayin declaring a public health emergency of international concern did not help itscredibility.Lastly, both Germany and Europe should not remain passive during this globalregime competition and rather contribute in shaping the future path of the WHO.Indeed, pursuing a multilateral world order based on the respect of humandignity of every person is at the core of German raison d’état as well as a coreconstitutional principle of the European Union according to Article 21, paragraph1 TEU. The WHO, as shown clearly by the ongoing pandemic, is an essential partof this multilateral world order. This entails, among other things, encouraging theorganization to fully live up to its role for the multilateral world order, as well assupporting the organization in its current financial predicament, caused by theirresponsible withdrawal of the US funding.This text was originally published in German at the Frankfurter Allgemeine Zeitungon 23 April, 2020, and is a summarized version of a longer research text available atthe MPIL Research Paper Series, available here.- 4 -

The Law of the WHO, COVID-19 and the Multilateral World Order

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The Law of the WHO, COVID-19 and the Multilateral World Order

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