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Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the
International Health Regulations to Prepare for Future Threats

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Has Global Health Law Risen to Meet the
COVID-19 Challenge? Revisiting the International
Health Regulations to Prepare for Future Threats
Global Health Law Global health law is essential in implement mitigation strategies, test
responding to the infectious disease at-risk populations, or treat infected
threats of a globalizing world, where individuals. As the coronavirus
Lawrence O. Gostin, no single country, or border, can wall sweeps across unprepared nations,
Roojin Habibi, and off disease. Yet, the Coronavirus Dis- national legal responses have proven
ease (COVID-19) pandemic has tested unable to prevent, detect, or respond
Benjamin Mason Meier the essential legal foundations of the to the pandemic, and the sheer scale
global health system. Within weeks, of human, social, and economic
the SARS-CoV-2 coronavirus has cir- upheaval has challenged global
cumnavigated the globe, bringing the health law as never before.
world to a halt and exposing the fra- Framing global health law to con-
gility of the international legal order. trol infectious disease, the Interna-
Reflecting on how global health law tional Health Regulations (IHR)
will emerge in the aftermath of the have established a global surveillance
COVID-19 pandemic, it will be cru- and reporting system and set national
cial to examine the lessons learned minimum mandatory controls to pre-
in the COVID-19 response and the vent disease and maximum permis-
reforms required to rebuild global sible limitations on individual rights,
health institutions while maintaining state sovereignty, and commercial
core values of human rights, rule of interests. Last revised in 2005 fol-
law, and global solidarity in the face lowing the shortcomings in national
of unprecedented threats. and global responses to the severe
Unlike anything seen since the acute respiratory syndrome (SARS)
Great Influenza Pandemic of 1918, epidemic, the revised IHR provide a
health systems have faltered under legal framework through the World
the strain of the COVID-19 pan- Health Organization (WHO) to build
demic, with cascading disruptions national capacity for infectious dis-
throughout the world. Borders have ease prevention and detection and
closed, businesses shuttered, and to strengthen global governance to
daily life brought to a standstill. In address any public health emergency
the absence of a treatment or vaccine, of international concern. While these
About This Column governments worldwide have sought IHR obligations were intended to
to ensure physical distancing across facilitate international coordina-
Lawrence O. Gostin and their populations; yet, vulnerable, tion in the context of public health
Benjamin Mason Meier serve marginalized, and disadvantaged emergencies, nationalist responses
as the section editors for Global populations have faced structural have challenged global governance in
Health Law. Professor Gostin is obstacles in meeting these necessary addressing this pandemic challenge.
University Professor at Georgetown imperatives to contain the disease. Amidst challenging global health cir-
University and the Founding Linda
This unequal risk of infection is exac- cumstances, WHO has faced increas-
D. & Timothy J. O’Neill Professor of
Global Health Law at Georgetown erbating health inequities — within ing IHR violations from states and,
University Law Center and Director and across nations — with weak as a consequence, limited influence
of the World Health Organization health systems lacking the capacity to in the COVID-19 response.
Center on National and Global
Health Law. Professor Meier is an
Associate Professor of Global Health Lawrence O. Gostin, J.D., LL.D. (Hon.), is University Professor at Georgetown
Policy at the University of North University and the Founding Linda D. & Timothy J. O’Neill Professor of Global
Carolina at Chapel Hill and a Scholar Health Law at Georgetown University Law Center and Director of the World Health
at the O’Neill Institute for National Organization Center on National and Global Health Law. Roojin Habibi , J.D.,
and Global Health Law. This column M.Sc., is a Research Fellow at the Global Strategy Lab and a Doctoral Candidate at
will feature timely analyses and Osgoode Hall Law School, York University. Benjamin Mason Meier, J.D., LL.M.,
perspectives on law, policy, and justice Ph.D., is an Associate Professor of Global Health Policy at the University of North
in global health. Carolina at Chapel Hill and a Scholar at the O’Neill Institute for National and Global
Health Law.

376 journal of law, medicine & ethics

The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
DOI: 10.1177/1073110520935354
 Gostin, Habibi and Meier

Global health law remains cru- aim to structure a harmonized sur- level of global health security while
cial to preventing, detecting, and veillance, reporting, and response avoiding unnecessary interference to
responding to COVID-19 — imple- system across WHO member states international traffic and safeguard-
menting the IHR to control the rapid — with these regulations automati- ing human rights in the public health
spread of this novel coronavirus — cally binding on all WHO member response.3
and this column explores the long states unless explicitly rejected. Yet, Looking beyond specific infec-
evolution and continuing limitations the applicability of the IHR was tious diseases, IHR (2005) codified
of this WHO framework. Outlining limited to only three select diseases the versatile and encompassing cat-
the international legal landscape, (cholera, plague, and yellow fever), egory of a Public Health Emergency
this column examines the evolution and as the world faced a continuous of International Concern (PHEIC),
of global governance over infectious stream of emerging and re-emerging which includes any extraordinary
disease, describing how limitations diseases, the principal international event that:
of global health governance led to the legal instrument for preventing,
1. constitutes a public health risk to
other states through the interna-
Reflecting on how global health law will emerge tional spread of disease (broadly
in the aftermath of the COVID-19 pandemic, it defined as “any illness or medical
condition, irrespective of ori-
will be crucial to examine the lessons learned gin or source, that presents or
in the COVID-19 response and the reforms could present significant harm to
required to rebuild global health institutions humans”) and
2. potentially requires a coordinated
while maintaining core values of human rights, international response.4
rule of law, and global solidarity in the face of
unprecedented threats. Through National IHR Focal Points,
states bear an obligation to notify
WHO within 24 hours of all detected
events within their territory which
contemporary revision of the IHR. detecting, and responding to infec- may constitute a PHEIC.5 Based upon
This column then analyzes the imple- tious disease outbreaks was increas- information received from both state
mentation of the revised IHR in the ingly seen as inadequate. and non-state sources (e.g., media
COVID-19 response, reflecting both Despite calls for the revision of the and online sources, civil society, and
the promise of the IHR in promoting IHR, it took an outbreak of a novel other states), the WHO Director-
global solidarity and the weaknesses coronavirus to prompt international General has the ultimate authority to
of the IHR in realizing an effective action. SARS emerged in Guangdong, determine whether an event consti-
international response to this global China in late 2002, but China did not tutes a PHEIC, considering:
threat. Given the continuing limita- inform WHO of this emerging threat
tions of the IHR, this column con- — as SARS was not one of the three
siders reformed international legal diseases covered by the IHR. China’s 1. information provided by the State
authorities and new international delay in accurately reporting the Party within whose territory an
legal instruments to bind states SARS outbreak — compounded by event is occurring;
together under global health law in the use of domestic legal restrictions 2. advice from an ad hoc technical
facing future pandemic threats. inconsistent with public health prac- expert group known as the Emer-
tice — drew widespread international gency Committee;
The Legal Landscape condemnation, raising calls for WHO 3. scientific principles, available sci-
Drawing from the long history of action.2 With SARS highlighting the entific evidence, and other related
international health law described weaknesses of international law to information; and
in the opening column on “Global control for infectious disease, the 4. an assessment of the risk to
Health Law,”1 the 1946 WHO Con- international community committed
human health, of the risk of inter-
stitution provided WHO with the with remarkable speed to updating
authority to negotiate conventions, the breadth, scope, and notification national spread, and of the risk
regulations, and recommendations obligations under the IHR. of interference with international
on any public health matter. With The 2005 revision of the IHR traffic.6
this broad constitutional author- provides the contemporary legal
ity to regulate public health, WHO framework to prevent, detect, and This PHEIC declaration has since
assumed governance over the IHR as respond to public health emergen- been employed by WHO six times to
an international legal framework to cies of international concern. The control the international spread of
control infectious disease. The IHR IHR were revised to achieve a higher infectious disease: polio, Zika, Influ-

opioid controversies: the crisis — causes and solutions • summer 2020 377
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
JL ME COLUMN

enza H1N1, Ebola (in West Africa and tify best practices.11 This voluntary, as to what Chinese authorities knew,
then in the Congo), and most recently collaborative, multisectoral process when they learned it, and whether
in the ongoing global struggle against seeks to help countries strengthen they notified WHO in a “timely, accu-
COVID-19. their capacities to prevent, detect, rate and sufficiently detailed” manner
Beyond the international declara- and rapidly respond to public health in accordance with the IHR16 — or
tion of a PHEIC, the IHR bind states threats. Yet despite these evolving whether, as with SARS, the response
to build their domestic capacities efforts to support states in building was impeded by the information poli-
to prevent, detect, and respond to public health capacities and meet- tics of autocratic governance, leaving
infectious disease. Using the nor- ing IHR responsibilities, many states WHO with insufficient information
mative power of global health law continue to shoulder weak health sys- to promptly declare a PHEIC.17
to frame national efforts to contain tems with inadequate legal capacity.12 Even after China notified WHO
disease, the IHR set concrete obliga- about this coronavirus outbreak, the
tions for governments to strengthen Implementing the IHR in the IHR failed to facilitate WHO’s rapid
national public health capacities and COVID-19 Response declaration of a PHEIC, delaying
improve global health security. States The COVID-19 pandemic has brought global preparations for a pandemic
retain sovereign authority to develop into sharp focus the limitations of the response. With inadequate reporting
national health legislation, but this IHR in (1) notifying WHO of public and a split in expert opinion, WHO
domestic legislation “should uphold health risks; (2) declaring a PHEIC Director-General Tedros Adhanom
the purpose” of the IHR, reinforc- where necessary in the international Ghebreyesus convened an Emer-
ing international commitments. 7 response; (3) coordinating national gency Committee on three occasions
These international health commit- responses commensurate with public in late January 2020 to advise on the
ments extend to human rights law, health risks; and (4) fostering global declaration of a PHEIC, as the Com-
with the IHR requiring that domes- solidarity for infectious disease pre- mittee continued to find that it was
tic implementation “shall be with the vention, detection, and response. “too early” and that there were “a lim-
full respect for the dignity, human From the initial outbreak in China, ited number of cases abroad.”18 (The
rights and fundamental freedoms of notification delays significantly ham- definition of a PHEIC may have been
persons.”8 Thus, national measures pered WHO’s ability to understand misapplied at this critical juncture,
under the IHR must be based on sci- the scope of the threat and coordinate as neither the timing of the threat
entific risk assessment and must not the international response. Although nor the actual international spread
be more restrictive of international China first reported a case of novel of disease are constitutive elements
traffic, or more intrusive to indi- coronavirus to WHO on December of a PHEIC — on the latter question,
viduals, than reasonably available 31, 2019, retrospective analyses have there need only be the “potential” for
alternatives.9 Where nations lack the demonstrated that SARS-CoV-2 was international spread. 19) A PHEIC
capacity to meet these commitments, already circulating in Wuhan for sev- was finally declared on January 30th,
the IHR provide a path for interna- eral weeks prior to the first WHO by which point the coronavirus was
tional collaboration and assistance notification.13 One of the principal well on its way to becoming a pan-
in the development, strengthening, IHR reforms in 2005 sought to allow demic – something WHO would not
and maintenance of national public WHO to take account of non-state formally acknowledge until March
health capacities.10 (“unofficial”) sources of informa- 11th.20 Global health law scholars
Under this international legal tion, recognizing that governments have long questioned WHO’s tenta-
framework for global health secu- are often reluctant to notify WHO tive approach to declaring a PHEIC,
rity, WHO plays a coordinating role of novel pathogens within their bor- arguing that where the IHR defini-
in supporting member states to ders; however, this innovation was tion is met, a PHEIC declaration can
strengthen health systems and build ineffective in the early days of the spur action, investment, and soli-
public health capacities. However, COVID-19 outbreak, as Chinese darity from the international com-
states were slow to reform their pub- authorities repressed health work- munity.21 Yet, WHO has remained
lic health capacities following IHR ers, scientists, and civil society in diplomatically hesitant to exercise its
(2005), pushing WHO to work with December 2019 — keeping them authority to declare a PHEIC, appre-
states in 2016 to develop monitoring from sharing timely concerns about hensive of a declaration that could
mechanisms to facilitate accountabil- a novel coronavirus in Wuhan.14 (As devastate the economies of affected
ity for public health law reforms. The the IHR does not provide WHO with states and spur nationalist measures
resulting Joint External Evaluation the authority to investigate events that hamper global coordination.22
(JEE) has provided a monitoring and independently, the IHR requirement Following this PHEIC declara-
evaluation tool to assess IHR imple- for WHO to verify reports received tion, states have responded with
mentation at the country-level, cre- from non-state sources with the rel- overwhelming restrictions on inter-
ating an independent expert review evant state dismantled an additional national traffic, individual rights,
process to: assess national progress channel through which WHO could and global commerce — with these
in meeting IHR core capacities, find have received the necessary informa- nationalist restrictions taken in direct
gaps in implementation, and iden- tion.15) Legitimate questions remain contravention of WHO recommenda-

378 journal of law, medicine & ethics

The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
 Gostin, Habibi and Meier

tions. In responding to PHEICs under erected cordon sanitaires (guarded confront the COVID-19 pandemic
the IHR, state responses are expected areas where individuals may not through global governance, states
to adhere to WHO’s temporary recom- enter or leave). 26 (WHO praised have reverted to isolationist policies,
mendations and other IHR parame- China’s containment efforts as “ambi- geopolitical competition, and global
ters.23 Where states apply other health tious, agile and aggressive,”27 yet it neglect. This shortsightedness amidst
measures, such measures are required has since tempered its enthusiasm for the COVID-19 pandemic, neglect-
under the IHR to achieve equal or such restrictions on individual liber- ing WHO guidance and threatening
greater health protection than WHO ties.28) Even as evidence increasingly WHO support when global gover-
recommendations and be: points to the need for widespread nance is needed most, has exposed
the world to staggering humanitar-
ian upheaval, economic instability,
and health insecurity.33
The future of global health must have The world is now paying in immea-
international law at its foundation, and the WHO surable human suffering for these
compounding IHR violations, with
Director-General has already advocated for COVID-19 presenting a lasting threat
strengthening the IHR to reflect an independent to health security, human rights,
and the rule of law.34 Where states
assessment of the COVID-19 response. When fail to uphold global health law, the
the pandemic recedes, WHO must mobilize its world loses the ability to mitigate
common threats through collective
member states to undertake this major review of action. The future of global health
international legal authorities, including WHO’s must have international law at its
foundation, and the WHO Director-
institutional structure, to realize the promise of General has already advocated for
global health law in addressing future infectious strengthening the IHR to reflect
an independent assessment of the
disease threats. COVID-19 response. When the pan-
demic recedes, WHO must mobilize
its member states to undertake this
major review of international legal
1. based on scientific principles, testing, contact tracing, and physi- authorities, including WHO’s institu-
and available scientific evidence, cal distancing, 29 with transparent tional structure, to realize the prom-
or where such evidence is insuf- governance and public participation ise of global health law in addressing
ficient, on advice from the WHO in health decision-making, govern- future infectious disease threats.
and other relevant intergovern- ments are increasingly using such
mental organizations; states of emergency as pretext for Revising Global Health Law to
widespread abuses of human rights Meet Future Threats
2. not more invasive to persons or
and subversive attacks on democratic Global health law has proven unable
more restrictive of international governance.30 to mitigate the threat of COVID-19,
traffic than reasonably available Finally, the rise of nationalism has raising an imperative for interna-
alternatives; and undercut the global solidarity envis- tional legal reforms to clarify state
3. implemented with full respect aged under the IHR, which requires obligations, facilitate legal account-
for the dignity, human rights states to adopt a common and shared ability, and realize global health secu-
and fundamental freedom of responsibility to “collaborate…to the rity. Such holistic reforms of global
persons.24 extent possible.”31 While IHR duties health law will require either the
of international “collaboration and undertaking of fundamental revi-
Although states have disregarded assistance” are intentionally unspe- sions to the IHR framework or the
WHO recommendations in the past cific, states have taken advantage development of a new international
by enacting travel and trade restric- of these ambiguities to limit their legal instrument to structure global
tions, the sheer scale of violative state actions to national frontiers, shirk- health governance.
actions — including travel bans, flight ing international responsibilities and Strengthening global governance,
suspensions, visa restrictions, and undermining WHO governance. The it will be necessary to ensure that
border closures — has brought inter- international community’s failure to WHO is amply funded and politically
actions within and between countries ensure the equitable global distribu- supported, empowering it to “speak
to a grinding halt. 25 Governments tion of “staff, stuff, space and systems” truth to power” in confronting gov-
rapidly instituted domestic Stay- has already twice created the perfect ernments that do not comply with
at-Home orders, closed businesses, storm for the resurgence of Ebola.32 science-based recommendations.
banned public gatherings, and even Instead of now coming together to This will require critical reforms of

opioid controversies: the crisis — causes and solutions • summer 2020 379
The Journal of Law, Medicine & Ethics, 48 (2020): 376-381. © 2020 The Author(s)
JL ME COLUMN

global health law, including revisions tiated legal instrument, supported

9. IHR, art. 43. See also B.M. Meier, D.P.
to provide authority for: Evans, and A. Phelan, “Rights-Based
by compliance mechanisms, peri- Approaches to Preventing, Detecting,
odic meetings of states parties, and and Responding to Infectious Disease,”
•  Enhanced Surveillance and Man- in Infectious Diseases in the New Mil-
dispute settlement processes;39 or lennium: Legal and Ethical Challenges
datory Reporting — allowing for
•  Providing standing WHO recom- (2020): 217-253.
unofficial data sources, including 10. IHR, art. 44; See also L. O. Gostin and
mendations on necessary state
civil society and academic experts, R. Katz, “The International Health
responses — with detailed WHO Regulations: The Governing Frame-
and the independent collection of
guidance on appropriate national work for Global Health Security,”
public health data where necessary Milbank Quarterly 94, no. 2 (2016):
policies and regular empirical anal-
by WHO staff;35 264–313.
ysis of the impact of public health 11. World Health Organization, IHR
•  Transparency in PHEIC Delib-
laws on public health outcomes. (2005) Monitoring and Evaluation
erations — allowing for open and framework: Joint External Evaluation
independent EC decision-making36 States will be the ultimate deci- Tool (WHO 2018).
and shifting from a binary trigger 12. B. M. Meier, K. Tureski, E. Bockh, D.
sionmakers in these next steps, yet Carr, A. Ayala, A. Roberts, L. Cloud,
to a tiered system of multiple levels these reforms must recognize the N.Wilhelm, and S. Burris, “Examining
of public health emergency to spur ongoing struggle that states have National Public Health Law to Realize
commensurate state responses;37 faced in preventing, detecting, and the Global Health Security Agenda,”
Medical Law Review 25, no. 2 (2017):
•  Rapid & Public Monitoring of responding to infectious disease. 240-269.
State Measures — allowing for Where the COVID-19 pandemic has 13. C. Huang et al., “Clinical Features of
scrutiny of state decisions that presented an unprecedented threat Patients Infected with 2019 Novel
to global health, impacting every Coronavirus in Wuhan, China,”
do not comply with WHO guid- The Lancet 395, no. 10223 (2020):
country throughout the world, it will
ance, with monitoring and review 497–506.
be urgently necessary at the earli- 14. L. Yuan, “China Silences Crit-
in global economic governance,
est appropriate moment to reshape ics Over Deadly Virus Outbreak,”
under international trade law, and the global health law landscape to New York Times, January 25, 2020,
through the human rights system; respond collectively to the common available at <https://www.nytimes.
and com/2020/01/22/health/virus-corona.
threat of future pandemics. html> (last visited April 4, 2020); L.
•  Global Funding Mechanisms — Garrett, “Grim Reapers: How Trump
allowing for the development of Note and Xi set the Stage for the Coronavi-
new or reformed global governance The authors have no conflicts to disclose. rus Pandemic,” The New Republic, April
2, 2020, available at <https://newre-
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