COVID-19 and the WHO’s International Health Regulations (2005)

The International Health Regulations (2005) (the “IHR”) are the key international legal instrument regulating the “international spread of disease”. They bind 196 States, including all Member States of the World Health Organization (the “WHO”). Their purpose is to:

[P]revent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.

Pursuant to IHR Article 12, on 30 January 2020, the WHO Director-General (the “Director-General”) declared that the COVID-19 was a “public health emergency of international concern” (a “PHEIC”). That same day, the Director-General issued a number of Recommendations (the “COVID-19 Recommendations”), pursuant to IHR Articles 15 and 49. Those Recommendations contained advice specifically addressed to: (i) the WHO; (ii) the People’s Republic of China (“China”); (iii) “all countries”; and (iv) the “global community”.

The COVID-19 Recommendations included that: (i) China implement a comprehensive communication strategy to keep the population regularly informed of the outbreak; (ii) China conduct screenings at international airports and ports to facilitate early detection of symptomatic travellers; (iii) all countries be prepared for containment of the outbreak, including early detection, isolation and case management and prevention of onward spread; and (iv) “the global community […] suppor[t] each other on the identification of the source of this new virus […] and research for developing necessary treatment”.

Notably, the Director-General “d[id] not recommend any travel or trade restriction based on the […] information available” at the time. In addition, “Countries [were] cautioned against actions that promote stigma or discrimination, in line with the principles of Article 3 of the IHR”.

States have reacted in a variety of ways to the COVID-19 Recommendations. A number of States sought strictly to comply with them. Other States either fell short of implementing the COVID-19 Recommendations or adopted additional, more stringent measures, such as travel bans.

A number of these measures could trigger international disputes. These include investor-State disputes, intra-State disputes and disputes among international organisations and States. The relevance of the COVID-19 Recommendations and the potential legal effects of deviating from them will likely play an important role in at least part of those disputes.

The IHR provide States with wide discretion as to how to respond to a PHEIC and related Recommendations. IHR Article 1 states that the Recommendations constitute “non-binding advice”. Equally, Article 3(4) reaffirms that States Party “have […] the sovereign right to legislate and to implement legislation in pursuance of their health policies”. However, that sovereign right is not unlimited. Article 3(4) itself makes clear that States must exercise it “in accordance with the Charter of the United Nations and the principles of international law” and that, “[i]n doing so they should uphold the purpose of these [IHR]”.

IHR Article 43 further reflects this necessary balance. For example, on the one hand, Article 43 makes clear that the IHR “shall not preclude States Parties from implementing health measures […] in response to […] a PHEIC, which […] achieve the same or greater level of health protection than WHO recommendations”. On the other hand, it provides that “[s]uch measures shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.”

Notably, Article 43 also requires States Party to provide to the WHO the “public health rationale and relevant scientific information” behind additional health measures that both: (i) go beyond the Recommendations; and (ii) “significantly interfere with international traffic” (“Additional Measures”). States Party must comply with this obligation within 48 hours of implementation of any Additional Measures. The travel bans recently implemented by numerous States would likely fall within this category of measures. Indeed, the COVID-19 Recommendations expressly highlighted the correlation between travel bans and the States Party’s reporting obligations under Article 43. Among other limits, the IHR also require that any health measures implemented pursuant to the IHR be: (i) “initiated and completed without delay”; and (ii) “applied in a transparent and non-discriminatory manner”.

In this context, a number of measures implemented by WHO States Party to tackle the COVID-19 will be closely scrutinised in the coming months, particularly once the more pressing health emergency has improved. For example, the WHO noted that, as of 7 February 2020, “a total of 72 States Parties were identified to be implementing travel restrictions”. However, “[o]f these 72 States Parties, [the] WHO received [only] 23 (32%) official reports from States Parties about their travel restrictions.” As of 9 March 2020, a total of 45 States Parties had provided the WHO with the public health rationale for their Additional Measures. This suggests that numerous States were yet to provide the information required by Article 43.

In addition to breaches of reporting obligations, affected States, international organisations and private entities might challenge as discriminatory travel bans that, without a strong scientific basis, were directed at citizens from only certain countries. Other States might be accused of failing to act “without delay”, causing unjustified injury to a variety of actors. Equally, States might be accused of contributing to the stigmatisation of citizens from certain States.

The IHR themselves provide for a number of dispute settlement mechanisms that could address at least part of these issues. For example, pursuant to IHR Article 56(5), disputes between States and the WHO regarding the interpretation and application of the IHR can be submitted to the World Health Assembly – the WHO’s decision-making body.

For its part, Article 43(7) provides that “any State Party impacted by [an Additional Measure] may request the State Party implementing such a measure to consult with it […] to clarify the scientific information and public health rationale underlying the measure and to find a mutually acceptable solution”.

These consultations do not prevent States Party to seek to settle State-to-State disputes concerning the interpretation or application of the IHR through the separate dispute settlement mechanism established in IHR Article 56. That provision requires States Party to attempt “in the first instance to settle the dispute through negotiation or any other peaceful means of their own choice”. Should this attempt fail, “the States Parties concerned may agree to refer the dispute to the Director-General, who shall make every effort to settle it”. In addition, any State Party may at any time accept arbitration as compulsory with regard to all disputes concerning the interpretation or application of the IHR. In that scenario, “the arbitration shall be conducted in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States applicable at the time a request for arbitration is made”. Notably, the latter two options require the concerned States specifically to consent to international arbitration. A number of States have recently shown increasing reluctance to submitting disputes to third-party adjudication. Therefore, the requirement for additional consent might severely limit access to international arbitration of IHR disputes. Of course, we are still in the early days of this crisis and circumstances might change.

IHR Article 56 also preserves “the rights of States Parties under any international agreement to which they may be parties to resort to the dispute settlement mechanisms of other intergovernmental organizations or established under any international agreement”. Further highlighting the interrelation between the matters regulated by the IHR and States’ other international law obligations, IHR Article 57 provides that: (i) the IHR and other relevant international agreements “should be interpreted so as to be compatible”; and (ii) “[t]he provisions of the IHR shall not affect the rights and obligations of any State Party deriving from other international agreements”.

Indeed, the measures implemented so far, and those that will likely be implemented in the coming months, could amount to a breach of international obligations included in other treaties. These include investment treaties and international agreements concerning specific industries, such as aviation and tourism.

In sum, the current crisis has already led States to take unprecedented measures. Some of those measures were based on the COVID-19 Recommendations. Others went far beyond the same. Many were likely implemented without providing the decision-makers with enough time properly to consider the measures’ legal implications or scientific basis.

These measures will probably give rise to a very significant number of legal disputes. As the key legal instrument regulating the “international spread of disease”, the IHR will play a role in at least part of those disputes. But the IHR neither were designed nor are able to provide, by themselves, an answer to the totality of the far-reaching consequences of the COVID-19 crisis. The IHR’s material scope is understandably limited. Their terms are generic. And their dispute settlement mechanisms not only exclude private entities and individuals but also are highly dependent on the disputing States’ willingness to submit the specific dispute to compulsory adjudication.

The IHR will therefore have to be interpreted and applied alongside a wide variety of international instruments, including international investment and industry-specific treaties. Customary international law defences precluding wrongfulness of State actions also will have a role to play.

In exercising their sovereign right to implement health measures to safeguard their citizens’ health, States should be mindful of their international obligations under the IHR, other applicable instruments and customary international law more generally. Upholding the rule of law can limit the devastating consequences of this crisis. When in doubt, States and other actors should seek qualified legal advice, including in order to protect their own rights and consider the dispute resolution mechanisms potentially available to them.

For further information, please contact Robert Volterra (Robert.Volterra@volterrafietta.com), Álvaro Nistal (Alvaro.Nistal@volterrafietta.com) or Ricardo Gerhard (Ricardo.Gerhard@volterrafietta.com).

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