A Critical Appraisal of the World Health Organization’s International Health Regulations (2005) in Times of Pandemic: It Is Time for Revision

BROBERG, Morten

The explicit objective of the WHO is “the attainment by all peoples of the highest possible level of health”.5 To achieve this, the WHO is mandated to act as the directing and coordinating authority on international health work6 to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of governments,7 and to stimulate and advance work to eradicate epidemic, endemic and other diseases.8 Within the WHO framework, the World Health Assembly (WHA) has been established as a decision-making body consisting of delegates from the WHO Member States.9 The WHA has the authority to adopt conventions and agreements with respect to any matter within the WHO’s competence.10 Moreover, the WHA has the authority to adopt regulations concerning sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease.11 The WHO’s most important regulatory basis is the “International Health Regulations” – a set of rules whose origins can be traced back to the first International Sanitary Conference in 1851, at which several European states convened in an attempt to fight cholera and the first Sanitary Regulations were drafted. [...]IHR (1969) had been drafted so that the WHO was dependent on each state itself reporting the outbreak of a disease – and frequently the states simply abstained from doing this. The review gained considerable momentum when the deadly SARS epidemic broke out in 2003,13 and in 2005, the WHA adopted the presently applicable IHR (2005).14 IHR (2005) figures amongst the international agreements that most states have signed up to.15 Its purpose is “to prevent, 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”.16 For our purposes, it is of particular importance that the WHO’s members have undertaken to notify the WHO of events that may constitute what is called a “public health emergency of international concern”.17 When compared with IHR (1969), the adoption of IHR (2005) represents a crucial expansion in the rules’ coverage from three predefined transmittable diseases to any event that could be considered a “public health emergency of international concern” – and, as a matter of principle, this includes any outbreak of a transmittable disease. On 30 January 2020, the WHO’s Director General declared the COVID-19 outbreak a “public health emergency of international concern” (ie an extraordinary event determined to constitute a public health risk to other states through the international spread of disease and to which a coordinated international response could potentially be required).21 This allowed the WHO to issue so-called “temporary recommendations” such as specific health measures to be implemented by the state or states where the disease has broken out.