Pedro Villarreal is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law. His focus is on public international law, comparative law and human health, as well as on the intersections with international economic law. He is co-manager of the project “International Health Governance”, in which he has conducted research jointly with political scientists, physicians, and anthropologist on subjects such as the multilevel responses to cross-border disease outbreaks.
Many thanks to Pedro Villarreal (PV) for agreeing to be interviewed by Max Planck Law’s online editor Gilbert Leung (GL).
GL: Let’s start at or near the beginning: There seems to be question marks on 1) whether China in December 2019 fulfilled its obligation under Art. 6 International Health Regulations (IHR) to quickly notify the World Health Organization (WHO) of the threat posed by the Coronavirus outbreak, and 2) whether the WHO could have more forcefully insisted on clarifications by China. Can you tell us if there have been any recent developments in answering these questions?
PV: Both questions are the subject of inquiry by the so-called Independent Panel for Pandemic Preparedness and Response (IPPR), as well as the IHR Review Committee, both summoned by the WHO’s Director-General. These bodies kicked off their meetings just recently (mid-to-late September 2020) and they plan to continue into the first half of 2021. The focus of the inquiries will be mostly on the second question, i.e. on the WHO’s handling of the pandemic at its outset, with an emphasis on its exchanges with the Chinese government. Such a task will mostly entail interviewing the organization’s personnel and examining internal documents. The IHR Review Committee, with a legal mandate based on Article 50 IHR, is also expected to make specific observations on the current implementation of disease reporting and information-sharing obligations, both during and beyond the COVID-19 pandemic. But it is unclear, at this point, how deeply these inquiries will delve into your first question, since it requires fact-finding on alleged actions and, notably, omissions by Chinese authorities in the city of Wuhan. Major concerns remain on the feasibility of gathering necessary evidence. Basically, as time goes by, it will be increasingly difficult to engage in a reconstruction of how China’s notification to the WHO was effectuated. It is very unclear whether the Chinese government will ever consent to any comprehensive external fact-finding inquiries.
GL: Even if it were demonstrated that the Chinese government had breached the IHR, what powers does the WHO have to address such a breach?
PV: In such a scenario, the IHR currently does not grant the WHO any power to sanction states in case of non-compliance. At most, it could engage in “naming-and-shaming” by pointing towards a failure to fulfill a specific obligation. Under Article 56 IHR, only states may invoke breaches as a ground for international responsibility for wrongful acts. Here, it would be theoretically possible to resort to judicial dispute settlement at the Permanent Court of Arbitration. But even then, an explicit declaration by both the applicant/plaintiff state and the respondent state (in the hypothetical example, China) accepting to submit the dispute to binding arbitration is required. No such declaration is visible either in the IHR’s Appendices, or in the corresponding institutional documents of the WHO. Consequently, there is a built-in stalemate in the IHR for dealing with controversies regarding the Chinese government’s initial handling of the COVID-19 pandemic.
GL: Given one of your previous writings on state’s obligations, I expect you would consider “naming and shaming” to be insufficient to guarantee the rule of law. If I am correct, what kind of reform or evolution would you like to see in the WHO to enable it to better guarantee a rules-based system?
PV: Although “naming and shaming” would indeed be insufficient for upholding a rules-based system of disease surveillance, it would be a good start. Under the current system of disease reporting , the WHO is notified every year of hundreds of events related to health threats (including infectious disease outbreaks) that have a potential for cross-border spread . We do not know their exact circumstances, as the vast majority of these events are never communicated to the public. While the WHO does list the total number of yearly notifications, both the reporting state and the exact nature of the event generally remain undisclosed. Only in exceptional occasions, such as the tense exchange between the WHO and Tanzania in 2019, do we know whether a state is not fulfilling its reporting obligations.
That being said, going beyond “naming and shaming” could consist of several options. I do not personally advocate for the WHO to be able to sanction states by itself. Instead, other proposals, such as those from Rebecca Katz, point towards enhancing oversight of the IHR through regular meetings of states parties. This, to me, is very promising, particularly as after COVID-19 there might be momentum amongst states for taking the IHR more seriously. Lastly, as another means of enhancing compliance, the provisions related to dispute settlement under Article 56 IHR ought to be revised. As indicated in my preceding response, the mechanism´s paralysis undermines the regulations´ effectiveness. If states parties are committed to being accountable in case of non-compliance, reforms could include ensuring there are fewer procedural obstacles to judicial and other types of dispute settlement.
GL: On 6 June 2020, the Trump administration notified the UN of the USA’s intention to withdraw its WHO membership. Aside from the murky politics behind this action — with Trump accusing China of a cover-up and the WHO of failing to hold China accountable — what are the legal ramifications of such a notification and what will be the impact on the WHO’s international standing and ability to operate?
PV: As analyzed elsewhere by Harold Koh and Lawrence Gostin (focused on the US) and by Gian Luca Burci (focused on the ramifications for the WHO), if such an action were to succeed, the ramifications would encompass several dimensions. Firstly, the WHO would lose its main contributing state, which until 2020 provided for circa 12% of the entire budget. Besides the immediate possibility to have non-state donors make up for the gap, it is unclear whether other state(s) could pick up the tab — and who that would be. Koh and Gostin note, though, that before withdrawing the US committed itself, in a Congressional resolution upon its entry to the WHO in 1948, to 1) give a one-year notice; and 2) cover the due financial contributions for the pending period. Thus, a withdrawal is not so straightforward.
Second, if a US withdrawal were to occur, as held by Burci, it would also undermine the entire global system of disease surveillance. The obligations of the IHR, including those of notifying unexpected public health events, would no longer be applicable to the country. Considering how the H1N1 influenza pandemic of 2009 was first notified to the WHO thanks to the joint efforts of Mexico, the United States, and Canada, the threat of undermining the system is quite visible. A vast territory with hundreds of millions of persons could become a “blind spot” for the WHO´s response to new and re-emerging pathogens.
GL: Would a US withdrawal from the WHO also affect the equitable global distribution of a COVID-19 vaccine?
PV: I believe a US withdrawal would affect the eventual distribution of a vaccine against COVID-19, though mostly indirectly. The budgetary issues mentioned above would hamper the organization´s capability to steer its mechanisms. However, staying in the WHO does not guarantee per se that there will be support (financial or otherwise) for initiatives such as COVAX, since participation in the mechanism by Member States is voluntary. As explained by others in a commentary in The Lancet, high-income states may opt for advanced purchase agreements with pharmaceutical companies to secure their own access, regardless of how other states will fare. The WHO does not have the power to oblige its Member States to endorse initiatives for globally enhancing access to a future vaccine(s). In any case, so far COVAX has managed to attract a considerable number of expressions of interest by states, though not all of them represent binding commitments.
GL: Outside of the COVAX initiative, what are the prospects of a claim to a “right to vaccination” as part of, for example, a more general right to health in international law.
PV: A “right to vaccination”, grounded on the broader right to health, could be formulated as a normative argument in case a safe and effective vaccine against COVID-19 becomes available. Article 12.2(c) of the International Covenant on Economic, Social and Cultural Rights enshrines an obligation to take steps necessary for “[t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases”. While the wording does not specify how exactly this ought to be accomplished, General Comment 14 of the Committee on Economic, Social and Cultural Rights has interpreted immunization as part of the necessary strategies for achieving this goal. Thus, adopting specific measures towards immunization against COVID-19 could be framed as part of the obligation. Since states are the main addressees of obligations under the right to health, and not the more abstract idea of an international community, claims to a right to vaccination would be directly aimed at the former. But the overarching conditions limiting immediate access to the vaccine would first need to be addressed. Therefore, if a “right to vaccination” against COVID-19 emerges, it would need to be somehow read against a more general context, which could hamper access particularly for lower income states. In any case, a rights-based approach could also serve as a guiding thread for international institutions, as their role could consist of striving towards the removal of states´ “external” obstacles for the fulfillment of the right to health.
GL: Finally, bearing in mind your extensive research into the previous H1N1 influenza pandemic, what are the most urgent or important new areas of legal research arising from COVID-19?
PV: I believe emerging paths for legal research in fields such as pandemic preparedness and response ought to strive towards stronger links to empirical insights. From a doctrinal perspective, this has already been analyzed more deeply in a trailblazing article by Niels Petersen. When addressing events such as H1N1 influenza or COVID-19, normative claims need to be firmly grounded on sound factual descriptions. Without the latter, many legal arguments are bound to be misguided. Consequently, conducting legal research in these and other subject areas inevitably entails approaching other fields of knowledge. Here, the main challenge is to identify common concerns, i.e. existing overlaps, and to develop a language capable of bridging different approaches. Yet beyond the obstacles, in my view these synergies are of the utmost importance for tackling problems such as the ongoing COVID-19 pandemic.