ASIL Insights

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Introduction

At its Fifty-Sixth Annual Meeting, the World Health Assembly-the most important policy-making organ of the World Health Organization (WHO)-adopted two resolutions concerned with severe acute respiratory syndrome (SARS) [1] and international law on infectious disease control. [2] Both WHO and press reports indicated that these resolutions constituted significant developments in global efforts to address infectious diseases. [3] Stories in the press reported that the actions taken at the World Health Assembly gave WHO more "power" and "authority" to fight international threats posed by infectious diseases. The Washington Post reported that the actions by the World Health Assembly "mark the first significant expansion of WHO power in more than three decades." [4] This Insight examines whether these resolutions affect existing international law on infectious disease control by granting WHO more legal authority vis-à-vis its member states. [5]

The Resolutions

The World Health Assembly resolution directly on SARS (SARS Resolution) urges WHO member states to take eleven different actions to enhance, support, and strengthen national, regional, and international efforts to address the SARS outbreak (WHA56.29, para. 1). The SARS Resolution does not create new obligations with respect to SARS. For example, the Resolution "urges" WHO member states to report SARS cases promptly and transparently, which is merely a recommendation.

The SARS Resolution also requests the WHO Director-General to take eleven specific steps to respond to the threats posed by SARS (WHA56.29, para. 2). Each of the specific requests made for action by the WHO Director-General falls into existing areas of WHO work on infectious disease control (e.g., the request "to strengthen the functions of WHO's Global Outbreak Alert and Response Network") and, thus, the requests do not constitute the expansion of WHO's powers in this area of its mandate. The SARS Resolution is nevertheless important because it underscores not only the SARS threat, but also the importance of international cooperation and the role of WHO in global infectious disease efforts.

The resolution on revision of the International Health Regulations (IHR Resolution) contains the provisions that the press has reported as representing the creation of new WHO power and authority with respect to international efforts on infectious diseases. In these provisions, the World Health Assembly:

 REQUESTS the Director-General:
(1) to take in account reports from sources other than official notification, to validate these reports according to established epidemiological principles;
(2) to alert, when necessary and after informing the government concerned, the international community to the presence of a public health threat that may constitute a serious threat to neighbouring countries or to international health on the basis of criteria and procedures jointly developed with Member States;
(3) to collaborate with national authorities in assessing the severity of the threat and the adequacy of control measures and, when necessary, in conducting on-the-spot studies by a WHO team, with the purpose of ensuring that appropriate control measures are being employed[.] (WHA56.28, para. 4)

International Legal Analysis of the IHR Resolution

For three reasons, these provisions do not change existing international law on infectious disease control by giving WHO more power and authority vis-à-vis its member states. First, under the WHO Constitution, resolutions of the World Health Assembly are not legally binding instruments. [6] The World Health Assembly can adopt international legal instruments, such as a treaty (WHO Constitution, Article 19) [7] or international regulations (WHO Constitution, Article 21), but these only become binding as a matter of international law on a WHO member state when it has consented to be bound. International law-making by the World Health Assembly follows the traditional principle of treaty law-states are only bound when they expressly consent to be bound.

Second, the substance of the quoted provisions of the IHR Resolution, with perhaps one exception, reconfirm existing WHO policies and practices. The provision requesting the Director-General to take account of information gathered from non-governmental sources and to validate it according to epidemiological principles reflects the approach to global infectious disease surveillance approved by the World Health Assembly at a prior meeting. [8] The WHO's Global Outbreak Alert and Response Network (Global Network) has been making use of governmental and non-governmental information since its initial establishment in 1998 and its formal launch in 2000. [9] Verification of information is a cardinal principle of WHO's approach to global surveillance regardless of the source of the information. [10]

The request that the Director-General collaborate with national authorities in assessing the severity of infectious disease threat and the adequacy of control measures and, when necessary, conduct on-the-spot studies with WHO personnel likewise does not depart from existing WHO policies and practices. The IHR Resolution does not give the WHO the power to send WHO staff into a country to investigate an outbreak without that country's permission. The language of this provision is clear that collaboration between the WHO and the country in assessing the threat and in conducting on-site inspections is necessary. Thus, claims that the Resolution "gives the agency the authority to begin ground inspections without a formal invitation" [11] are incorrect. A WHO spokesman accurately observed that "[a]ny country has an ultimate veto over allowing a visitor entry; there's no way around that." [12]

Interestingly, the original language proposed by the WHO Secretariat for this provision departed from traditional WHO policies and practices by providing that WHO could conduct on-the-spot studies "when necessary and after informing the government concerned[.]" [13] This wording suggested that WHO could conduct such studies after merely informing the country in question rather than obtaining permission. Perhaps this explains why the wording did not appear in the resolution adopted.

The request that the Director-General alert the international community to the presence of a public health threat that may constitute a serious threat to neighboring countries or to international health arguably asserts new power for the WHO. WHO issued global alerts in connection with SARS, but its authority to do so was unclear. [14] The International Health Regulations (IHR), which constitute the only rules of international law on infectious disease control binding on WHO member states, do not provide an express basis for WHO's issuance of global alerts. Nor does the WHO Constitution provide the Organization with this power. The IHR Resolution represents, therefore, important political recognition by WHO member states of WHO's authority to issue the kind of global alerts used in the SARS outbreak.

Although a very significant political step for WHO, the IHR Resolution may not represent any radical change for the Organization from the perspective of international law. First, the global alerts WHO issued during the SARS outbreak were met, with one exception, with acquiescence by WHO member states. The one exception occurred when the Canadian government protested WHO's advisory about travel to Toronto, but even the Canadian protest only challenged the particular advisory in question, not WHO's authority to issue such alerts. Political acceptance of such actions by WHO was, thus, present prior to the IHR Resolution.

Second, the IHR Resolution recognizes the role of WHO member states in determining how WHO will exercise its global alert authority. WHO may issue such alerts "on the basis of criteria and procedures jointly developed with Member States[.]" In other words, the WHO member states will shape the framework through which WHO may issue global health alerts consistent with the principle in the WHO Constitution that the member states determine the policies of the Organization (WHO Constitution, Article 18(a)).

Third, political recognition that WHO can issue global alerts in specific situations also acknowledges that neither countries nor international organizations can keep disease outbreak information hidden from the international community today. As mentioned above, before the SARS outbreak, WHO member states recognized the changed technological context of epidemiological surveillance by approving use of information from non-governmental sources. The reality of much more open flows of disease outbreak information places a premium on responses to outbreaks being coordinated and grounded in scientific and public health principles. Hence, the revolution in information technologies not only created opportunities for global infectious disease surveillance (now mined by WHO's Global Network), but also posed challenges with respect to ensuring that government responses to reports of disease outbreaks are appropriate. Coordinating global efforts on disease surveillance and response has been one of WHO's traditional responsibilities.

The Power of "Soft Law"

Although the IHR Resolution does not create new international law binding on WHO member states, it provides an excellent example of the power of "soft law" in international relations. International lawyers typically distinguish binding rules of international law-"hard law"-from non-binding norms, principles, and practices that influence state behavior-"soft law." WHO has during its existence generated many soft-law norms, creating a "soft-law regime" in international governance for public health. [15]

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political groundwork for improved international cooperation on infectious diseases. These resolutions clearly define WHO member states' normative duty to cooperate fully with other countries and with WHO in connection with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating in, and enhancing, international cooperation on infectious disease controls is in a country's self-interest. The political, economic, and public health damage China has suffered from its initial uncooperative position on SARS stands as a warning to countries in the future that are tempted to cover-up outbreaks and refuse international assistance. If this warning is heeded, the "soft law" in the SARS and IHR Resolutions could inform the development of general and consistent state practice on infectious disease surveillance and outbreak response, perhaps crystallizing eventually into customary international law on infectious disease prevention and control.

Second, the WHO's effective performance in the SARS outbreak and the leverage the Organization obtains from the IHR Resolution have strengthened WHO politically in its dealings with member states. A stronger political position will allow WHO to continue to construct a framework for international cooperation on infectious diseases that may withstand the expanding global threats posed by pathogens. WHO intends to use this political leverage to accelerate the revision of the IHR, on-going since 1995, and to transform "soft law" norms in the IHR Resolution into binding international law through Article 21 of the WHO Constitution. [16]

Conclusion

An unfortunate pattern marks the history of international law on infectious diseases-an outbreak occurs, triggering intense diplomatic activity and the creation of new rules of international law, followed by states neglecting public health, failing to report infectious disease events to international health organizations, and applying irrational measures to the trade and travel of countries suffering outbreaks.

With SARS, there is again an outbreak triggering intense diplomatic activity and the anticipation of the creation of new rules of international law. States and international health organizations have created both "soft law" and "hard law" in response to epidemics stretching back to the late 19^th century, only to see such rules ignored or violated by states. The SARS and IHR Resolutions point in a direction that would break this historical pattern. Whether the pattern is broken at this moment in history depends ultimately not on international law, but on the commitment of governments to elevate public health to a national and foreign policy priority.

About the Author: 
David P. Fidler is Professor of Law and Ira C. Batman Faculty Fellow at Indiana University School of Law-Bloomington.

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