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.
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.
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