China's contempt for compliance with international law calls for rethinking public health diplomacy

The International Health Regulations have been around since the 1960s and agreed to by the World Health Assembly, binding all members of the World Health Organization. But the IHR of 1969 was weak, at best, in terms of obligations on members. There were only four reportable diseases, one being smallpox which dropped off the list in the late 1970s and the remaining diseases, Yellow Fever, Cholera and Plague were not frequent epidemics and all of them had treatment protocols that would contain any outbreak.

The SARS pandemic, often called the first pandemic of the millenia, started in Guangdong, China in November 2002, and was kept quiet by the Chinese government. But in February 2003, a doctor brought the virus to Hong Kong, and began the worldwide spread that resulted in more than 8,000 infections and 800 deaths in 26 countries before it was contained or just disappeared as it evolved. The World Health Organization had only the IHR of 1969 and no obligation for China to report a novel coronavirus, only one of the three reportable diseases. While it had been clear for some time that the IHR of 1969 needed to be updated, the shameful failure of China to report the outbreak and allow it to spread beyond its borders before allowing help to arrive in identifying the virus, pushed the revision of IHR to the top of the WHO Agenda.

So immediately after the spread from China to Hong Kong, and the refusal of China to cooperate with outside scientists, the World Health Organization assembly of members, the World Health Assembly, passed a resolution, WHA 56.29, May 28, 2003, that urged WHO member states to take eleven specific actions to enhance, support, and strengthen national, regional, and international efforts to address the SARS outbreak. But most significantly, they also passed resolution WHA 56.28, to begin revision of the IHR, urging member states to give “high priority” to revising the IHRs 1969 and “to provide the resources and cooperation necessary to facilitate the progress of such work.”
Most importantly, WHA56.28 granted the WHO power to intervene by sending WHO teams to independently investigate and conduct “on-the-spot studies” to determine whether national authorities are taking “appropriate control measures.”

The Washington Post reported that the actions by the World Health Assembly “mark the first significant expansion of WHO power in more than three decades.”  They wrote that WHA56.28 “frees [the] WHO from having to wait until a country officially reports an international health threat before beginning countermeasures . . . and gives the agency the authority to begin ground inspections without a formal invitation.” [Rob Stein, WHO Gets Wider Power to Fight Global Health Threats, Wash Post A15 (May 28, 2003)]. Everyone knew why WHO was granted to the power to enter a country without invitation, and it was clear that China had paved the way for such a sovereignty-infringing regulation and making it acceptable to WHO Members.

China was silent, while WHO tried diplomacy to gain access for scientists to diagnose the disease. After gaining access to enter China around March, by April WHO was threatening to leave and withdraw resources because of lack of cooperation by China. 

Meanwhile, the revision of the IHR was underway and a final draft was signed by the Members of WHO in 2005 and the regulations became effective (and binding) June 2007. China was a signatory, and they agreed to be bound by the new regulations that required reporting within 24 hours of confirming a disease with certain charateristics that would add up to threating global public health, identifed as a Public Health Emergency of International Concern (PHEIC).

Now, twelve years after the IHR went into effect, in 2019, another coronavirus emerges within China's borders; and again, China sat silent, even punishing those who would dare to speak out about the novel deadly coronavirus. But the IHR anticipated this type of secrecy and so it also provided for reports to come from reporters or individuals directly to WHO, alerting WHO of a disease coverup. The country is notified for a response. This is the legal mechanism that allowed WHO to pursue the COVID-19 reports followed by the obligatory response of China based on individual reports leaked from the country. So China failed to comply with its simpliest requirement to send a notification to the WHO within 24 hours of determining they had a disease that met the definition of a PHEIC.  Years of diplomacy to ensure the problem child of the international public health community, China, would comply with regulations so clearly triggered by China's failures during SARS.

So the difference between SARS and COVID-19 for China is clear. For SARS, China was just a morally and ethically bad global citizen. For COVID-19, China violated international law by all accounts and should be accountable in an appropriate judicial or diplomatic forum. Ideally, the IHR violations should trigger the WHO or even the UN Security Council to sanction China for violating international norms and regulations.

What does this say for the value of international law if China is given a pass by the WHO for this history of violating international norms and rules? It makes all international law, weaker.

Maybe WHO as an international diplomatic mechanism is something that is time to rethink, and maybe withholding dues to an organization that has done nothing to enforce its IHRs is not so unreasonable.

Has anything really changed with our way of coping with pandemics in human history?

An excerpt from an 11-year old's journal in 1912 about a smallpox epidemic in her town and how it affects her family was published by a relative in the Coeur d'Allene newspaper today, and the observation that I have to make is that we are dealing with COVID-19 about like we did with smallpox in 1912, without a lot of advancement. Quarantine and isolation is in use, but with slightly less constitutional due process, and family social-distancing is practiced. The same family factors are still important --the father is missing work, and the extended family is buying groceries and leaving them on the doorstep for the sick family.

Let's not stop with the analogy, and continue to travel back in time.

The year is 1350, and the black plague is in full force in Europe. Without any knowledge of germ theory, social distancing is still practiced and is the rule of the day. Some towns are completely quarantined and no one enters or leaves. Some houses are boarded shut -- with the residents inside, who were destined to pass on from the plague. The religious leaders said the pandemic was punishment from God, and flagellating zealots wandered from town to town in hopes of redeeming society, and bringing a close to the largest wave of death ever seen by Europe (in recorded history). Doctors and everyone who could afford a mask, wore one. By the time the plague arrived again in the 1400s, King HenryVI banned kissing in England; and in the 1600s, the iconic doctor's mask with a large beak, made of leather and stuffed with fragrant flowers, was the standard of personal protective equipment.

Nothing much has changed. We seem to be coping with the pandemic much the same way we did with the same tools since the 1300s, with incremental improvements from century to century. Quarantine and isolation are still are best tools to fight COVID-19; masks and "face coverings" are the standard of personal protective equipment for leaving your home, if you can; and some religious leaders are suggesting the world is being punished for its sins. I am not disputing the truth of that, I am simply saying we are still saying the same things and doing the same things in response to a pandemic, as we did since the beginning of recorded history, despite the industrial revolution, the physics revolution and now the biotechnology revolution.

So what, if anything, has changed?

Hope that we can cure it -- a realistic hope. As a society we are not panicked because we know that in infectious diseases of the past, we have followed a process of researching and using vaccines to combat viral infectious diseases, including childhood diseases, and yes, that scourge of smallpox. We also have the benefit of centuries of data on the epidemiological curves (a mid-19th century discovery) and have some imperfect projection of how we will reach a peak, how high the peak might be, and when we can expect to see changes to the infection and death rate. Yes, it is imperfect, but it gives us an edge on predictability, that we didn't have in 1352, or even 1912. There was such a complete lack of hope during the Black Plague, and many thought the end of the world was coming, that there was wild drunkenness and orgies in defiance of the expected coming end of the world.

One other notable similarity -- our counts of deaths during the Black Plague in Europe are fairly accurate; yet, we have no accurate information about the true number of deaths in Asia from the Black Plague. Some things never change.

The compliance and calm has been strikingly successful, leaving us with the final observation that we have a realistic hope for a way to win in this war against COVID-19, in a way, our human predecessors did not. We are also able to adapt to our isolation through the humanity-changing technology, with our worldwide interconnection through the internet. Many (not all) are able to continue working online, ordering food online, and learning online. We are incrementally less disrupted, by these incredible changes to the way that humans connect.

Will this change us when COVID-19 subsides? If the changes after 9/11 and the anthrax attacks are any indication, we will be changed by this forever, in some major ways and some subtle ways. Will we move farther into cyberspace to connect, and thereby be less disrupted by the next pandemic?

Almost certainly. 

Ethics of Selecting who gets a ventilator

This is not a shocking new idea, although it is the next step that we will have to take while we simultaneously try to flatten the curve of the infections.

The predicted shortage of ventilators has raised the question of how hospitals will select who gets a ventilator, and essentially, who lives and who dies?

Some considerations for ventilator distribution is first, to what cities should the stockpiles be sent? Should this be on a per capita basis, or on the actual, not predicted, cases? Now that directives on how to use a ventilator on two people have been discussed, that should be the first consideration before making any choices. Looking to the ethical guidance issued during the vaccine shortage of 2003-4, reveals some of the key considerations for similar respiratory distress risk groups.

During the bird flu outbreak the flu vaccine was in short supply because the U.S. supply had been sourced from a vaccine facility in France that had a contamination incident, and no shipment could be made to the U.S.. The second reason was a shortage of eggs that are used to make vaccine. Bird flu meant a lot of birds were destroyed creating an egg shortage, as well as a concern of contaminated eggs.

The New York Times reported on October 7, 2004, that the U.S. will receive only about 55 of the 110 million doses of flu vaccine ordered.

This led the CDC to convene its Advisory Committee for Immunization Practices (ACIP) to determine who would get the flu vaccine, since not everyone would have access to it.

Although CDC wrote that each group had the same priority, the listing had the effect of suggesting a priority in this order:

1. infants

2. elderly

3. chronically-ill

4. front-line medical workers

Many were critical at the time that front-line medical workers should have been at the top of the list rather than at the bottom. CDC was planning to revisit the hierarchy and mercifully, the flu season ended without being as bad as expected. In 2005, CDC made recommendations again, and healthcare workers were near the top of the list.

Since 1990, flu vaccinations in the U.S. nearly tripled in the 1990s, making the 2004 shortage a real issue (see graphic).

When the ACIP or ethics board gathers to consider who gets a ventilator, let's hope that healthcare workers are at or near the top, because the preservation of life (without question) is directly dependent on healthcare workers.