See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/341946747

The Collapse of Global Cooperation under the International Health Regulations

at the Outset of COVID-19

Article · June 2020

CITATIONS READS

4 885

2 authors:

Allyn L Taylor Roojin Habibi

University of Washington Seattle York University
80 PUBLICATIONS 1,427 CITATIONS 21 PUBLICATIONS 240 CITATIONS

SEE PROFILE SEE PROFILE

Some of the authors of this publication are also working on these related projects:

International Law and COVID-19 View project

All content following this page was uploaded by Allyn L Taylor on 06 June 2020.

The user has requested enhancement of the downloaded file.

 Statement on Racial Violence in the United States (/ASILStatement)

(/)

Home (/) / Insights (/insights) /

The Collapse of Global Cooperation under the WHO International Health Regulations at the Outset of COVID-19: Sculpting the

Future of Global Health Governance

The Collapse of Global Cooperation under the

WHO International Health Regulations at the
Outset of COVID-19: Sculpting the Future of
Global Health Governance

Volume: 24 Issue: 15
By: Allyn L. Taylor and Roojin Habibi
Date: June 05, 2020

I. Introduction
In April 2020, the United States (U.S.) became the new epicenter of the COVID-19 pandemic,
now surpassing over 1 million cases domestically. Despite praising the World Health
Organization (WHO) for "working hard and very smart" in February, President Donald Trump
has since changed his position, alleging that the WHO "severely mismanage[ed] and cover[ed]
/
up" the spread of coronavirus and engaged in the spread of misinformation, and ordered his
Administration to halt funding to the Organization and conduct an investigation of its
performance.[1] U.S. hostility towards the WHO escalated throughout the month of May,
starting with the Trump Administration blocking a Security Council Resolution on global cease
fire after China pushed for the resolution to mention the WHO.[2] President Trump's rebuke of
the Organization came to a head on the eve of the abbreviated annual World Health Assembly,
in a letter he posted on Twitter which threatened to withdraw the U.S. from the WHO and
permanently end funding for the Organization unless it "committed to substantial
improvements in the next 30 days."[3] Eleven days later, the President announced in a press
conference that he would terminate U.S. membership in the WHO and divert U.S. funding from
the Organization to other health agencies. [4]
Notwithstanding the President's announcement, he does not have the legal authority to
immediately withdraw the U.S. from the WHO and in the process discard U.S. financial
obligations to the WHO. In the 1948 Joint Resolution providing for U.S. membership in the
WHO, Congress specifically reserved the right to withdraw the U.S. from the Organization
subject to a one-year notice, and on condition "that the financial obligations of the United
States to the Organization shall be met in full for the Organization's current fiscal year."[5] In
addition to domestic legal constraints on immediate withdrawal, there are also international
legal limitations: on July 2, 1948, the World Health Assembly unanimously recognized the
ratification of the U.S. specifically subject to the withdrawal provisions of the Joint Resolution.
[6]

President Trump's announced goal to withdraw from and defund the core international health
agency in the midst of the pandemic drew heavy criticism by the international community.
What is widely acknowledged among the WHO member states, however, is the need for an
"impartial, independent and comprehensive evaluation" of the global response to the
pandemic "at the earliest appropriate moment."[7] Indeed, the WHO has itself identified the
need for an independent review once the crisis subsides.[8]
There is broad consensus that now is the time for action and solidarity—not inquisition and
inquiry. Since the entry into force of the International Health Regulations (IHR) in 2007—the
international legal instrument that governs the global response to public health threats with
potential for international spread—the world has faced six public health emergencies of
international concern (PHEICs), including the ongoing COVID-19 pandemic. With each
outbreak, the WHO has faced novel challenges, and the IHR have built-in mechanisms for
post-crisis reviews of performance to hone future responses to public health emergencies.

Nevertheless, perennial issues including both hindrances in governance and financing, surface
time and again after each outbreak review. This commentary explores the merits of calls for
inquiry by countries and unpacks their underlying legal and governance issues.

II. Normative Power & Political Consensus: WHO's Dilemma

/
Guided by the ideal of the right to health, the WHO has the constitutional directive to act as
the "directing and co-ordinating authority on international health work" and has wide-ranging
responsibilities to address global public health concerns, including spearheading global efforts
against infectious diseases.[9] The WHO Constitution (Constitution) entrusts considerable
normative powers to the organization under Articles 21 and 22, including a sparingly-used
power to negotiate regulations that become automatically binding on state parties after due
notice has been given of their adoption at the annual World Health Assembly, except for those
states that notify the WHO Director-General of any reservation or rejection within a specified
period.
However, the WHO's governance structure circumscribes its decision-making authority.
[10] The 194-member state plenary body, the World Health Assembly, among other functions
decides on policies and approves the Organization's budget, usually by consensus. The 34-
member Executive Board is mandated to give effect to the decisions and policies of the World
Health Assembly and drafts of the agenda of its meetings according to procedural rules. The
Secretariat is led by a Director-General, who is the WHO's chief technical officer.
The WHO has struggled to strike the fine balance between serving simultaneously as the
world's pre-eminent public health authority and the forum for intergovernmental global health
negotiations.[11] Founded in 1948, the Organization was seen for much of its history primarily
as a medical-technical agency, and it resisted serving as a center for negotiation and
codification,[12] only adopting its first treaty in 2003. The WHO's biennial budget rests just
below $5 billion—approximately half that of the U.S. Centers for Disease Control and
Prevention (CDC)'s annual budget. Voluntary contributions, which constitute three quarters of
this funding, are often ear-marked according to donor priorities.

In the absence of financial clout to independently set and implement its own global health
priorities, the WHO exercises caution in criticizing or judging member states and is reliant
upon their goodwill. Yet goodwill may not be enough in a landscape of proliferating public,
private, and mixed actors and institutions, all vying for funding and influence in global health
security.[13] Since the WHO is not legally mandated to govern or listen to nonstate actors, its
coordinating role is hindered.

These shortcomings are reflected in the IHR, the normative instrument of which the WHO is
custodian. Stretching back to the 19th century, the control of virulent infectious diseases is
one of the earliest areas of multilateral cooperation and the WHO, upon its founding in 1948,
inherited the responsibility for the management of the international legal regime. First adopted
by the World Health Assembly in 1951, the IHR are designed to provide an effective framework
for addressing the international spread of disease, while ensuring minimum interference with
world traffic.
After a decade-long negotiating effort, the World Health Assembly adopted a major revision of
the IHR in 2005. The revision was intended to incorporate modern epidemiological principles
and establish and improve the global capacity to prevent, detect, and respond to infectious
disease threats. Under the revised IHR, states are required to significantly strengthen their
/
national surveillance, reporting, and response mechanisms for disease outbreaks, with the
WHO serving as the central coordinating institution for global surveillance, risk assessment,
and international communication.

The normative impact of the IHR is circumscribed, however, by a general absence of effective
compliance and monitoring provisions, reflecting state party concerns with maintaining
sovereignty on politically sensitive matters arising within their border. Trump's criticism of the
WHO's performance overlooks, for instance, that the Organization does not have the authority
to initiate an independent investigation of an outbreak on a state party's territory, relying
instead upon the state's invitation to do so. Despite the G20 leaders' recent commitment to
support the "full implementation" of the IHR, and mount a response "that avoids unnecessary
interference with international traffic and trade,"[14] it is widely observed that states struggled
to uphold many of the legally binding commitments contained in the IHR both before and
during the COVID-19 pandemic, including: the obligation to notify the WHO in a timely manner
of the first cluster of cases, collaborate and assist in strengthening national public health
systems, and avoid unnecessary interference with international traffic and trade in the face of
the public health risk. [15] The Organization and the IHR have been effectively marginalized in
the most significant public health crisis in the last century as nations institute unilateral
decisions based upon nationalism and sovereignty – not international law.

III. The Path Less Traveled: Joint Programme on Global Health Emergencies
As the COVID-19 pandemic rages on, the WHO has been caught at the center of a geo-
political maelstrom. The outcome of the pandemic and political evaluations of the WHO's
performance in implementing the IHR and orchestrating the global response will sculpt the
future of global health governance and the role that the WHO may continue to play in it.

Early views vary considerably. On the one hand, the WHO has been the subject of deep
criticism for its failure to exercise global health leadership. Critics contend that the WHO lacks
the political authority to challenge states and that the geo-political politicization of COVID-19
bodes poorly for a future in which the WHO is at the helm of global health governance.
[16] Indeed, some Trump administration officials and scholars have suggested that the WHO is
not up to the task of leading the global response to infectious diseases and should be
sidestepped in favor of the development of a new global health security organization.[17] On
the other hand, champions of the Organization emphasize that the WHO is serving an
essential and underappreciated technical and operational role in global pandemic response
through scientific expertise, outbreak response capacities, and coordination of global
networks. According to this view, the challenges that the WHO has encountered in exercising
leadership in the pandemic are a direct outcome of the limited authority states have delegated
to it in the IHR, and the solution rests upon reforming the international agreement to reinforce
provisions on pandemic preparedness and response, as well as accountability mechanisms.

Crisis is the biggest stimulus for change in international organizations, and the COVID-19
disaster has illuminated global health as a core issue in the U.N. system. Consequently,
between these two polar opposite positions, now may be the time rethink the future of
/
infectious disease governance in a manner that preserves the vital functions of the WHO in
pandemic preparedness and response, but also addresses the need for a coordinated
international response from relevant organizations within and outside the U.N. system. In its
most recent statement, leaders of the G20 have in fact called on the WHO to "assess gaps in
pandemic preparedness" and look towards establishing a new "global initiative on pandemic
preparedness and response."

Global success against COVID-19 and future disease outbreaks mandates the establishment
of a framework in which the WHO continues to serve the central role envisaged by parties to
the IHR in using its scientific, medical and public health capabilities, as well as its normative
role, to effectively assist states to prevent, detect, and respond to disease outbreaks.
However, the WHO has neither the legal and political authority nor the technical capacity to
address economic, social, and health consequences of devastating global pandemics alone.
COVID-19 poses severe risks to all countries, particularly low-income states whose health
systems and national economies are ill-prepared to withstand the shock of pandemics. It also
poses particular risks to population groups, including older persons, prisoners, migrants,
refugees, and displaced persons. The fight against COVID-19 or another major pandemic in
the future requires wide-scale and multisectoral coordination to: enhance manufacturing and
equitable global sharing of necessary equipment, therapeutics, and vaccines; institute
targeted fiscal measures and loans to protect the global market and national economies,
businesses, and workers; protect the human rights and humanitarian needs of the most
vulnerable populations; and address disruption in international trade and travel, including
dispute resolution. Overall, an effective pandemic response requires the WHO to undertake
multisectoral collaboration with a range of agencies each working within their own mandate,
including, among others, the International Monetary Fund, World Bank, International
Organization for Migration, Food and Agriculture Organization, World Trade Organization,
International Labour Organization, United Nations High Commissioner for Refugees, Office of
the High Commissioner for Human Rights (OHCHR), Global Alliance for Vaccines and
Immunization, United Nations Entity for Gender Equality and the Empowerment of Women (UN
Women), and the World Food Programme.

The AIDS pandemic served as an early and powerful lesson on the need for a large-scale and
internationally coordinated response to emerging threats to public health from infectious
disease and exposed the limitations of traditional models of governance in international
organizations. One important reference point to consider for the development of effective
coordinating mechanism for infectious disease governance is the Joint United Nations
Programme on HIV and AIDS (UNAIDS, or the Joint Programme). Although not immune to
criticism, the Joint Programme's performance and interagency collaboration is widely credited
for an extraordinary contribution in putting AIDS on the global political agenda, and raising
unparalleled awareness, financial resources, and institutional response. The inclusive
governing body of UNAIDS, consisting of and leveraging the expertise of ten co-sponsoring
agencies and five NGOs as well as 22 geographically diverse member states, provides an
innovative model for the collaborative governance needed to address the wide-ranging
/
economic, social, and health consequences of major global disease outbreaks. Although it is
beyond the scope of this Insight to consider the details of such a new institutional framework
in detail, the potential benefits of a collaborative program are manifest. It could, among other
things, provide global leadership to achieve and promote global consensus on policy and
program approaches, strengthen the capacity of states to undertake appropriate and effective
disease outbreak management strategies, and secure broad-based political and social
mobilization for greater political and financial commitment to infectious disease control at the
global and country levels.

Importantly, under the umbrella of a broader and more inclusive infectious disease program,
the WHO's policymaking under the IHR may achieve more political insulation than the current
"go it alone" approach. As in the case of AIDS, an innovative, inclusive, and robustly-funded
organization specifically designed to provide leadership on global policy and ensure
coherence and coordination across the U.N. system is deeply needed to orchestrate an
effective response to rapidly-growing infectious disease epidemics whose ramifications
extend to all pockets of global society. The breakdown of global cooperation and the
marginalization of the WHO and the IHR at the early stages of COVID-19 evidences that the
time is ripe to rethink the legal framework and the governance structure for infectious diseases
to protect global public health in future pandemics.
About the Authors

Allyn L. Taylor is an Affiliate Professor of Law at the University of Washington School of Law,
Seattle. She is a former legal adviser at the World Health Organization.

Roojin Habibi is an international consultant, lawyer specialized in global health law, and
research fellow at the Global Strategy Lab, at York University in Toronto, Canada.

The views expressed herein are those of the authors alone.

[1] Michael D. Shear & Donald G. McNeill, Criticized for Pandemic Response, Trump Tries
Shifting Blame to the WHO, The New York Times, (Apr. 14,
2020), https://www.nytimes.com/2020/04/14/us/politics/coronavirus-trump-who-funding.html
(https://www.nytimes.com/2020/04/14/us/politics/coronavirus-trump-who-funding.html).

[2] Julian Borger, US blocks vote on UN's bid for global ceasefire over reference to WHO, The
Guardian (May 8, 2020), https://www.theguardian.com/world/2020/may/08/un-ceasefire-
resolution-us-blocks-who (https://www.theguardian.com/world/2020/may/08/un-ceasefire-
resolution-us-blocks-who).

[3] Donald J. Trump, Twitter (May 18,

2020), https://twitter.com/realDonaldTrump/status/1262577580718395393
(https://twitter.com/realDonaldTrump/status/1262577580718395393).

/
[4] David J. Lynch & Emily Rauhala, Trump Says US to Withdraw from World Health
Organization and Announces New Broadsides Against Beijing, Washington Post (May 29,
2020).

[5] Joint Resolution Provided for Membership and Participation in the World Health
Organization, Public Law 643, Both Congress (62 Stat. 441) (1948).

[6]https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?
src=UNTSONLINE&tabid=2&mtdsg_no=IX-1&chapter=9&lang=en#11
(https://treaties.un.org/Pages/ShowMTDSGDetails.aspx?
src=UNTSONLINE&tabid=2&mtdsg_no=IX-1&chapter=9&lang=en#11).

[7] Albania, Australia, Bahrain, Bangladesh, Belarus, Bhutan, Bolivia (Plurinational State of),
Brazil, Canada, Chile, China, Colombia, Costa Rica, Djibouti, Dominican Republic, Ecuador, El
Salvador, Fiji, Guatemala, Guyana, Iceland, India, Indonesia, Iraq, Japan, Jordan, Kazakhstan,
Maldives, Marshall Islands, Mexico, Micronesia (Federated States of), Monaco, Montenegro,
Morocco, New Zealand, North Macedonia, Norway, Panama, Paraguay, Peru, Qatar, Republic
of Korea, Republic of Moldova, Russian Federation, San Marino, Saudi Arabia, Singapore, Sri
Lanka, Thailand, the African Group and its Member States, the European Union and its
Member States, Tunisia, Turkey, Ukraine and United Kingdom of Great Britain and Northern
Ireland, COVID-19
response (2020), https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_CONF1Rev1-en.pdf
(https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_CONF1Rev1-en.pdf).

[8] Tedros Adhanom Ghebreyesus, WHO Director-General's opening remarks at the World
Health Assembly (2020), https://www.who.int/dg/speeches/detail/who-director-general-s-
opening-remarks-at-the-world-health-assembly
(https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-
world-health-assembly).

[9] WHO Constitution, art. 2(a).

[10] Allyn L. Taylor, Global Governance, International Law, and WHO: Looking Towards the
Future, 80 Bulletin of the World Health Organization 975–980 (2002).
[11] Steven J. Hoffman & John-Arne Røttingen, Split WHO in two: strengthening political
decision-making and securing independent scientific advice, 128 Public Health 188–194
(2014).

[12] Allyn L. Taylor, Health, in The Oxford Handbook of United Nations Treaties (2019).

[13] Jennifer Prah Ruger, Global Health Justice and Governance (2018).

[14] See G20 Leaders' Statement – Extraordinary G20 Leaders' Summit Statement on COVID-
19.

[15] Roojin Habibi, et. al., Do Not Violate the International Heath Regulations During the
COVID-19 Outbreak, 395 Lancet 664 (Feb. 29, 2020).
/
[16] David Fidler, The World Health Organization and Pandemic Politics, Think Global Health
(Apr. 20, 2020), https://www.thinkglobalhealth.org/article/world-health-organization-and-
pandemic-politics (https://www.thinkglobalhealth.org/article/world-health-organization-and-
pandemic-politics).

[17] Ilona Kickbusch, COVID-19 is Smoke and Mirrors: What Matters is International Law, Think
Global Health, (Apr. 15, 2020), https://www.thinkglobalhealth.org/article/covid-19-smoke-and-
mirrors-what-matters-international-law (https://www.thinkglobalhealth.org/article/covid-19-
smoke-and-mirrors-what-matters-international-law).

(/insights)

ASIL Insights Home (/insights)

Copyright by The American Society of International Law

The purpose of ASIL Insights is to provide concise, objective, and timely background for
recent developments of interest to the international community. The American Society of
International Law does not take positions on substantive issues, including the ones
discussed in ASIL Insights. Educational and news media copying is permitted with due
acknowledgement.

The Insights Editorial Board consists of Sonia E. Rolland

(https://www.northeastern.edu/law/faculty/directory/rolland.html), Matiangai Sirleaf
(http://law.pitt.edu/people/matiangai-sirleaf), Anastasia Telesetsky
(http://www.uidaho.edu/law/people/faculty/atelesetsky), and Natalya Scimeca. Justine
Stefanelli (jstefanelli@asil.org) serves as the managing editor.

Submit an idea for ASIL Insights

Persons with expertise in international law who are interested in writing ASIL Insights are
encouraged to submit proposals. Please click the button below to get started. /
View publication stats

Submit an ASIL Insights Proposal (/insights-proposal)

Guidance for ASIL Insights Authors

(/sites/default/files/AUTHORINFORMATIONANDDRAFTINGGUIDELINES.p
df)

RELATED RESOURCES

Trump Announces U.S. Withdrawal from WHO (/ILIB/trump-announces-us-

withdrawal-who)

Pandemic, Emergency Power, and Implications on ...

(/insights/volume/24/issue/13/pandemic-emergency-power-and-implications-right-
seek-asylum)

Can Trade Dispute Resolution Mechanisms Enhance...

(/insights/volume/24/issue/8/can-trade-dispute-resolution-mechanisms-enhance-
state-compliance)

Can Trade Dispute Resolution Mechanisms Enhance...

(/insights/volume/24/issue/8/can-trade-dispute-resolution-mechanisms-enhance-
state-compliance)

Episode 20: Authoritarian International Law? (/resources/podcast/ep20)

(http://twitter.com/asilorg)
(http://www.facebook.com/AmericanSocietyofInternationalLaw)
(http://www.linkedin.com/groups?gid=4420301&trk=hb_side_g)
(http://www.youtube.com/asil1906)
© 2020 The American Society of International Law
2223 Massachusetts Ave., NW, Washington DC 20008
Phone +1-202-939-6001
All rights reserved.