LEGALITY OF THE INTERNATIONAL HEALTH REGULATIONS

The readily referred to international legal framework dealing with health is a document styled as the International Health Regulations, 2005 (IHR, 2005) issued by the World Health Organization (WHO). The legality of IHR, 2005 can be traced back to the UN Charter through its linkages with the Specialized Agencies. The UN Charter recognizes the concept of Specialized Agencies having ‘wide international relationship’.[1] WHO is one such Specialized Agency having its own Constitution[2]. The WHO’s Constitution is essentially a treaty and conforms to the definition of treaty as provided under the law of treaties.[3] The Constitution of the WHO constitutes a Health Assembly comprising all Members to the WHO and the Health Assembly has been authorized to ‘adopt’ Regulations.[4] The scope of Regulations has been provided in the WHO Constitution and comprises five broad areas, out of which one relates to ‘sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease’.[5] Accordingly, since 1951, various Regulations were adopted.[6] The latest Regulations are the IHR, 2005. Whereas, the Constitution of WHO may be treated as a treaty having force of international law, the Regulations are not part of the treaty law and are based on derived legal authority from the treaty and at best be treated as international soft law on the subject or as ‘treaty derived’.[7]

COVID-19 AND IHR, 2005

On 11^th March, 2020, COVID-19 was declared a pandemic by the Director General, WHO.[8] The declaration of COVID-19 as a pandemic raised its response at international level. The IHR, 2005 provides an international legal framework that came into effect in 2007 and is at best an alert and response system. It, however, does not talk about pandemics, but refers to ‘infections’.[9] It does not provide for ‘disease specific approach’.[10] As required by the IHR, 2005, the contact persons for IHR from each member state started reporting the cases to the WHO, which  showcases the information through a dashboard on its website.[11]

PAKISTAN AND COVID-19

After the declaration of COVID-19 as a pandemic, the Government of Pakistan accorded it highest priority and a meeting of the National Security Committee was held to deal with the threat of COVID-19.[12] A detailed Action Plan was issued by the Government of Pakistan.[13] It provided for the background, the steps to be taken and the short-term, medium-term and long-term measures to be undertaken. Detailed standing operating procedures for check-up at all points of entry into the country were also issued. The matter was treated as of national security.

IHR, 2005 AND OTHER AREAS OF INTERNATIONAL LAW

While the global response to the pandemic has been robust, there are areas of concern for the international lawyers that must be examined after the state of emergency comes to an end; in this regards, two broad areas may deserve more academic attention:

First, the relationship of the IHR, 2005 vis-à-vis the international human rights law. The IHR, 2005 has recognized the national measures as sufficient to deal with emergency situations dealing with health by stating that, as a matter of principle, the IHR, 2005 shall be with full respect for human rights.[14] In reality, however, the practices of quarantine and isolation as envisioned by the IHR, 2005 may not be compatible to the international human rights law.

Secondly, the trade-off between the international health law and the international trade law must be examined after the end of the emergency. There may be need to introduce a compliance-assessment system to the IHR and for special dispute resolution in case of emergencies for trade matters.

[1] Article 57 of the UN Charter recognizes the concept of Specialized Agencies. The relationship between the UN and the Specialized Agencies can be established through Article 63 of the UN Charter.

[2] The World Health Organization’s Constitution was adopted in New York in the International Health Conference in 1946 and was amended at different times. It was last amended in 2006.

[3] Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969.

[4] Article 21 of the WHO Constitution.

[5] Article 21(a) of the WHO Constitution.

[6] Starting from International Sanitary Regulations, 1951 to 1969 Regulations dealing with ‘quarantinable diseases’. The efforts to refine and improve Regulations continued till the latest version of the International Health Regulations, 2005.

[7] Schatz, S. Gerald, International Health Regulations: New Mandate for Scientific Cooperation, Volume:9, Issue:23, Insights, American Society of International Law https://www.asil.org/insights/volume/9/issue/23/international-health-regulations-new-mandate-scientific-cooperation (Accessed on 19th March, 2020).

[8] https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020

[9] Article 1 of the International Health Regulations, 2005.

[10] Fidler, P. David, Revision of the Wealth Health Organization’s International Health Regulations, Volume: 8, Issue 8, Insights, American Society of International Law https://www.asil.org/insights/volume/8/issue/8/revision-world-health-organizations-international-health-regulations (Accessed on 19^th March, 2020).

[11] https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd

[12] Pakistan’s top security panel to discuss action plan today, Daily Express Tribune, 13^th March, 2020 https://tribune.com.pk/story/2175086/1-nsc-discusses-coronavirus-action-plan-today/ (Accessed on 19^th March, 2020)

[13] https://www.nih.org.pk/wp-content/uploads/2020/03/COVID-19-NAP-V2-13-March-2020.pdf

[14] Article 3(1) of the International Health Regulations, 2005.