Even global lawyers can forget that a pandemic convention already exists. The International Sanitary Regulations were first inspired by an 1847 cholera plague. In 2005, the World Health Organization (WHO) expanded them to cover infectious diseases such as Ebola, in a treaty binding on 196 nations, inconspicuously called the International Health Regulations.

These regulations empower the WHO to declare a ‘public health emergency of international concern’ (PHEIC) on the advice of an expert committee. Declaring a PHEIC emergency – unfortunately pronounced ‘fake’ – then empowers the WHO to recommend how to control the disease’s spread.

The all-too-real history of PHEICs, culminating in Covid-19, has exposed the limits of the IHR. First, the WHO has no way to ensure that states build their ‘core public health capacities’ to stem a pandemic. The result is that most states lack those capacities. Indeed, even the nations thought most ready were caught flat-footed by Covid-19 (the US was number one).

Second, the WHO is too slow to declare a PHEIC. Partly that’s because it has no inspection power, and in a closed society such as China’s, it can’t count on truthful reporting by either official or unofficial sources. Partly, the WHO dallies because it is under intense pressure not to rankle donors by torpedoing the world economy. The fact that 80% of its budget comes from voluntary donations makes it all too pliable.

Possible solutions

Among the obvious solutions – if states can find the political will – are to make funding for the WHO mandatory and to give it a corps of intrusive inspectors, like those of the International Atomic Energy Agency. Former WHO legal counsel Gian Luca Burci suggests that crisis response would be nimbler if a gradual alert system replaces the all-or-nothing PHEIC (and let’s get rid of that acronym while we’re at it).

To encourage pandemic preparedness and compliance, the WHO could make these measures a condition for assistance. Better yet, the International Monetary Fund could make pandemic best practices a condition for any resort to foreign aid or the capital markets. Finally, with a vaccine access disaster looming in the developing world, any new pandemic regime should foreground the right to health and the duty of solidarity.

The main obstacle to such reforms is an orange man in a White House. In a fit of pique, on May 29, 2020 President Trump declared the US relationship with the WHO ‘terminated’, just 11 days after giving the organisation a 30-day ultimatum to ‘improve’. On July 6, the US formally gave 12 months’ notice that it plans to withdraw. Professor Harold Koh at Yale Law School argues that US withdrawal from the WHO requires a joint Congressional resolution – but even if this stymied the president’s temper tantrum, a second-term Trump is not about to engage with the WHO. 

New convention

International lawyer Robert Volterra believes we should start afresh with a freestanding convention on pandemic suppression. “Modifying the IHR is not going to happen,” he argues. “A new treaty unconnected to the WHO would be a way to get past the toxicity of the blame game for the current pandemic.”

But Mr Trump now looks headed for defeat in the November presidential elections. 

Thana de Campos, a research associate at the Unesco chair in bioethics and human rights, thinks a freestanding convention would be misguided, however. “It's not clear to me how a new pandemic treaty would complement the existing framework. I’m very sceptical about the need for another legal framework,” she says. 

Politically, the path of least resistance would go through the WHO since the WHO’s constitution authorises the World Health Assembly (by a two-thirds vote) to adopt a treaty binding any of its 194 member states that doesn’t affirmatively reject the treaty. After Covid-19 is defeated, the moment will be ripe to revamp the International Health Regulations.

This article first appeared in the August - September edition of fDi Magazine.