International health law is closely associated with the work of the World Health Organization (WHO) and the treaties it oversees, of which the 2005 International Health Regulations are the most prominent. In recent months, the United States has been critical of the WHO and its response to the Covid-19 pandemic, particularly the manner in which WHO engaged with China when reports of the disease emerged. US President Donald Trump has increasingly advanced this critique since April, which reached its high point on 29 May, when he announced the US was “terminating our relationship with the World Health Organization” and stated:
The world needs answers from China on the virus. The death and destruction caused by this is incalculable. We must have answers not only for us but for the rest of the world.
This announcement is a culmination of growing US frustration with the WHO. On 14 April, a US decision was made to suspend financial contributions to the organisation pending a review. As of January 2020, the US was due to make a US$58 million payment to its WHO contributions for this year, with a further US$41 million in arrears. On 18 May, Trump had written to WHO Director-General Tedros Adhanom Ghebreyesus detailing the US concerns, including China’s notification to the WHO of the Covid-19 outbreak, the WHO response and the alleged delays in the declaration of a public health emergency of international concern and in the declaration of a pandemic. Trump ended the letter by stating:
It is clear the repeated missteps by you and your organization in responding to the pandemic have been extremely costly to the world. The only way forward for the World Health Organization is if it can actually demonstrate independence from China.
Trump’s letter was delivered when the annual World Health Assembly, the decision-making body of the WHO, was about to commence its 2020 meeting. A unanimous 19 May Assembly resolution co-sponsored by 137 members, including the European Union and Australia, called upon the WHO Director-General to:
Initiate, at the earliest appropriate moment, and in consultation with Member States, a stepwise process of impartial, independent and comprehensive evaluation, including using existing mechanisms, as appropriate, to review experience gained and lessons learned from the WHO-coordinated international health response to Covid-19….
Particular aspects of this evaluation are to include the effectiveness of the mechanisms at WHO’s disposal, the functioning of the International Health Regulations, and the actions of WHO and its timelines pertaining to the Covid-19 pandemic. This 2020 resolution gives the WHO Director-General a clear mandate for reviewing the WHO response to the pandemic and the functioning of the International Health Regulations.
The Regulations are a multilateral treaty with 196 states parties, including China and the US, which entered into force in 2007. They create a series of obligations for states parties, including surveillance (Article 5), notification (Article 6), information-sharing (Article 7) and consultation (Article 8) with respect to events that take place within their territory that may constitute an international health concern.
The US freezing its WHO funding while the agency is responding to Covid-19 will not assist global action on the pandemic, nor will it assist in the WHO conducting the evaluation that Australia promoted, nor will it get the answers the US is seeking.
In the case of Covid-19, the WHO China Country Office was informed of pneumonia with an unknown cause detected in Wuhan, China from 31 December 2019 – 3 January 2020. The WHO issued its first Covid-19 Situation Report on 21 January 2020, in which it outlined the sequence of events that eventually resulted in the first meeting of the WHO Emergency Committee on 22 January. A critical determination under the International Health Regulations is an assessment that a situation constitutes a “public health emergency of international concern”, the characteristics of which include that there is an extraordinary event which under the Regulations is determined to constitute a public health risk to other states through the international spread of disease, and potentially to require a coordinated international response (Article 1). The WHO Emergency Committee eventually made that determination on 30 January. The declaration of Covid-19 as a pandemic was made on 12 March.
With respect to the extent of China’s obligations to notify WHO of a disease outbreak, the critical Article 6(1) notification obligation is that:
Each State Party shall notify WHO, by the most efficient means of communication available by way of the National IHR [International Health Regulations] Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory….
The US freezing its WHO funding while the agency is responding to Covid-19 will not assist global action on the pandemic, nor will it assist in the WHO conducting the evaluation that Australia promoted, nor will it get the answers the US is seeking. No timelines have been set for the evaluation. The World Health Assembly is scheduled to resume its deliberations later in 2020, where there will be an expectation that progress will have been made on the Covid-19 evaluation. A critical factor here will be the cooperation provided by China in facilitating the evaluation, especially whether WHO experts will be permitted to visit China and engage Chinese government officials to identify the origins of the disease.
Time will tell what the outcome of that process will be, and in particular whether there will be any meaningful reform of the WHO and the International Health Regulations. Amendments to the Regulations can only be made through the World Health Assembly. In the meantime, all of the member states need to play as constructive a role in that process as possible, because WHO and the Regulations represent the only current viable global process to respond to a pandemic.
So far, the US has not offered any alternate.