by S Navamohana Krishnan
The World Health Organization (WHO) is the one leading the fight against the global pandemic caused by Covid19. It has been providing countries with advices to contain the spread of the virus and coordinate the global research of potential drugs and vaccines.
Nevertheless, there have been major criticisms over the functioning of the Organization in tackling this situation. The United States President Donald Trump accused the Organization to have failed its ‘basic duty’ during the outbreak of the disease and promote ‘disinformation’ from China and henceforth froze his country’s fund to the organization. It has also been criticized for not coordinating the procurement of medical equipment between nations. The WHO, on the other hand, has appreciated China for its unprecedented levels of cooperation in handling the situation.
With the WHO becoming the latest victim of such accusations, as scholars have pointed out, it is important to look into the International Health Regulations (IHR) 2005, which regulates the scope of working of the Organization in such pandemic situations. International trade interests have been weighed over public health concerns in the IHR and have caused delays in immediate responses to the arising situations. Also, it is to be noted that a Public Health Emergency of International Concern (PHEIC) was declared almost a month after the intimation of the spread of an unidentified disease. By this time, the virus had already spread to 20 other countries outside China.
In the current scenario, the WHO requires more funds than ever while leading the global response to the pandemic. With the actions of WHO facing the legitimate concerns of the IHR 2005, is it the right way ahead to halt funding of the Organization? What would be the consequences the world has to face? Is there any other alternative?
Looking at the contribution of the US to WHO, the United States has been the biggest overall donor to the Organization over the last funding periods. With almost a quarter of the next budget (2020-2021) earmarking operations across Africa, they pose a greater concern now with the WHO getting defunded by the US. Also, Polio eradication remains to be one of the major WHO programs and the US has been a crucial contributor to these efforts.
Unfortunately, the current crisis has already led the United States to take unprecedented measures. But is it the best course of action over the settlement of disputes the legitimate way? The IHR 2005 guides us to such dispute resolution mechanisms among State parties or even with the Organization in case of one.
Article 56 of the IHR deals with the settlement of disputes (concerning the regulations) that has arisen due to the current case. In its first instance, the State parties can always resort to settle the dispute through negotiation or any other peaceful means of their own choice. Upon failure to settle the dispute this way, the concerned State parties may approach the Director-General, who would take all the required efforts to settle the dispute. A State party can also provide a written request to the Director-General requesting compulsory arbitration and the arbitral decision shall be binding and final. Also, Clause 5 of the article clearly says that in the event of a dispute between WHO and one or more States Parties concerning the interpretation or application of the (said) Regulations, the matter shall be submitted to the Health Assembly.
Nevertheless, the availability of a dispute resolution mechanism under the IHR, it is to be noted that this provision has not been invoked even once in the past to settle the disputes. This brings to our notice three possible reasons for this trend. Firstly, the dispute settlement process prescribed by the IHR is not mandatory and lacks enforceability. Though the decisions given by the Permanent Court of Arbitration is binding and final, the States are still not enforced by any means to comply with the decision. This points out the second issue, ineffectiveness in dealing with non-compliance. There is no explicit mandate granted by the IHR in the case of its active violation by the State parties. At the maximum, the state parties can review each other’s level of compliance based on the reports provided annually to the World Health Assembly. The Organisation’s stand that “the potential consequences of non-compliance are themselves a powerful compliance tool” seems rhetorical while discussing the issue from a legal standpoint.
Third, if a State party wants to hold a compulsory arbitration, it requires the acceptance of the other party to the same. There is no further recourse available to a State party if such acceptance to arbitration is denied by the other. Considering the current scenario, China may not accept the existence of any dispute and hence avoid the arbitration. The intervention of the ICJ too becomes difficult as it would question the existence of a dispute in the first case or an active violation of the IHR. The concerns raised above question the effectiveness of such dispute settlement processes. This issue has brought into the light, the need to review these provisions of the IHR and prescribe equitable and effective mechanisms.
Hence, the discrepancies with the legal texts binding the functioning of the WHO should not be the reason for it to be censured for its ineffective handling of the pandemic situation. Freezing funds and contributions will definitely not benefit the world positively and should be reconsidered for the greater good. The functioning of the WHO is highly critical in handling the situation, especially in middle- and low-income countries. As WHO’s COVID-19 special envoy David Nabarro rightly said, it is crucial to “Focus on the epic struggle right now and leave the recriminations until later”. It is important for humanity to stay together and fight this with the least possible ramifications.