Compliance and Accountability Mechanisms in the 2024 Revisions to the WHO International Health Regulations (2005)

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Since the COVID-19 virus first emerged in China in late 2019 there have been many high-level reviews of how the world could better have tackled this devastating episode, including the report of the Independent Panel on Pandemic Preparedness and Response (IPPR) report “Make it the Last Pandemic” co-chaired by Helen Clark and Ellen Johnson Sirleaf. EJIL: Talk! has previously featured various commentaries on the application of the 2005 International Health Regulations (IHR) in the COVID-19 pandemic and States’ accountability in relation to disease outbreak notification and control including States’ Duties to Prevent and Halt the Coronavirus Outbreak, whether Justified Border Closures violated the International Health Regulations as suggested in The Lancet, and whether there should be an International Commission of Inquiry for COVID-19. Arguably, however, it is ensuring countries’ capacities across all realms of pandemic preparedness that remains most important and should be the subject of overarching international accountability machinery.

On 1 June 2024, the World Health Assembly (WHA) finally adopted negotiated changes to the IHR in the light of the COVID-19 pandemic (the Revised IHR or the Regulations). The IHR are the legal instrument governing responses to contagious disease outbreaks, and are binding on World Health Organization (WHO) member States by virtue of Art 22 of the WHO Constitution. The IHR have been applied with considerable success in response to the Ebola virus, Avian Influenza A (H5N1), Swine flu (H1N1) and Severe Acute Respiratory Syndrome (SARS) and previously revised following the eradication of smallpox and experience with SARS. The Revised IHR need to be read together with the Proposal for a WHO “Pandemic Accord” or “Pandemic Agreement” under negotiation in the WHO Intergovernmental Negotiation Body (INB) applying in situations where a pandemic has been declared. The draft text of the Proposal for a Pandemic Agreement (Proposal), dated 22 April 2024, provides a reference point. A final text is due with the World Health Assembly in May 2025.

Together, the Revised IHR and the Proposal for a Pandemic Agreement are underwhelming in at least one core respect: their accountability and compliance machinery. Indeed, in this respect, the Revised IHR’s compliance mechanisms have already been described by one commentator as “not a game-changing development” (Fidler). The most important point to realise is that the Revised IHR compliance provisions are, in fact, focused on the implementation of the Regulations’ provisions on collaboration, assistance and financing rather than countries’ pandemic preparedness. This is disappointing, as it is the revised IHR that will bind all 194 WHO members, barring any individual State’s objections. The proposed Pandemic Treaty is, by contrast, an opt-in agreement and unlikely to attain the same membership. On top of this, it is still to be seen whether the provision in the proposed Pandemic Treaty for preparedness and response monitoring and evaluation (Art 6(3)) will survive negotiation. There are States that appear misguidedly to place notional concerns about “sovereignty” above national and global interests in ensuring pandemic preparedness.

A new emphasis on preparedness, and core capacities, in a context of equity and solidarity

Certainly, the emphasis on “preparedness” in the IHR has markedly increased with the 2024 revisions. The Revised IHR now include a specific reference in Art 2 establishing that the purpose and scope of the Regulations is to prevent, “prepare for”, protect against, control and provide a public health response to the international spread of disease…”. Art 13 makes clear that every State Party is to develop, strengthen and maintain the capacities to prevent, prepare for, and respond promptly and effectively to public health risks and PHEICS, including a pandemic emergency and in fragile and humanitarian settings (Art 13(1) Revised IHR). The WHO is to collaborate with and assist States Parties, at their request, with evaluating and assessing their core capacities in order to facilitate the Regulations’ effective implementation (Art 44(2)(a) Revised IHR). The Proposal for the Pandemic Agreement would also commit parties to pandemic preparedness and readiness (Art 6 Proposal). Among other matters, each party would be committed to developing a comprehensive national pandemic prevention preparedness and response plan that addresses pre, post and interpandemic periods in a transparent manner that promotes collaboration with relevant stakeholders, including the private sector and civil society (Art 17(4) Proposal). 

The IHR’s Annex 1 on all-important “core capacities” has, in the meantime, been renegotiated with an important raft of specifications regarding the capacities States must develop, strengthen and maintain in the fields of prevention, surveillance (see also Art 5 (1) Revised IHR), preparedness and response. These include capacities to immediately implement preliminary control measures, rapidly determine control measures to prevent the domestic and international spread of disease, capacities for risk communication, including addressing misinformation and disinformation, and capacities for coordinating across national and local levels.

However, it is a new commitment to equity and solidarity that is the chief hallmark of the Revised IHR, now featuring squarely in the principles articulated in Art 3(1). Art 3(1) provides that the Regulations will be implemented with full respect for the dignity, human rights and fundamental freedoms of persons, and “shall promote equity and solidarity”. These principles play out in practical terms in two ways – the first is through assurances of access to relevant health products needed to respond to Public Health Emergencies of International Concern (PHEICs) including the new category of “pandemic emergencies”. The second is the way in which the principles of equity and solidarity play out through new provisions on financing to assist States in implementing the Regulations, with particular emphasis on assisting States to develop, strengthen and maintain the core capacities identified in Annex 1 and on addressing the needs of developing countries (Art 44 Revised IHR). This is critical to the Revised IHR. It is this pivotal matter of collaboration, assistance and financing on which the Revised IHR’s compliance machinery focuses.

Art 44 takes a three-tiered approach to collaboration, assistance and financing. First, States are individually to maintain or increase their own domestic funding to support the implementation of the IHR, subject to applicable law and available resources (Art 44(2 bis) Revised IHR), as well as collaborating to strengthen sustainable financing. Second, States are to collaborate to encourage the responsiveness to developing countries of existing financing entities and funding mechanisms and identify and enable access to financial resources necessary to address the needs and priorities of developing countries (Art 44(2 ter) Revised IHR), including through the IHR Coordinating Financial Mechanism (Art 44bis). Third, the WHO Director-General shall support this collaboration work in Art 44 (2 bis) Revised IHR, and both States Parties and the Director-General shall report on its outcomes to the WHA (Art 44 (2 quarter) Revised IHR).

The principles of equity and solidarity are equally expected to feature clearly in the new Pandemic Treaty. The principle of equity plays out in the Proposal for a Pandemic Treaty inter alia through draft text on international cooperation (Art 19 Proposal) and sustainable financing (Art 20 Proposal). The latter would require each party, with the means or resources at its disposal, to maintain or increase domestic funding for pandemic prevention, preparedness and response; to mobilise additional financial resources to assist other parties, in particular developing countries, in implementing the Pandemic Agreement; and to explore innovative funding mechanisms (Art 20(1) Proposal). The Proposal would establish a Coordinating Financial Mechanism (Art 20(3) Proposal). Potentially this will be the same institution as the intended Coordinating Financial Mechanism in Article 44bis of the Revised IHR.

Compliance and accountability

Review bodies, scholars and government advisors have all devoted considerable thought respectively to the optimal framework for compliance and accountability machinery in the Revised IHR and Pandemic Agreement. Various contrasting recommendations have been made. Scholars have discussed the potential of an expert, facilitative, non-compliance body as seen in the Paris Agreement on Climate Change and also the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (Foster, 2024, 35–37). The Report of the Independent Panel for Pandemic Preparedness and Response (IPPR) “Make it the Last Pandemic” recommended critical, independent, impartial accountability mechanisms to spur action. This included the idea of a senior Global Health Threats Council to monitor progress towards goals and targets, and report on a regular basis to the United Nations General Assembly and the WHA. Incorporation of relevant pandemic considerations into existing instruments used by the IMF and World Bank was also contemplated. The Global Preparedness Monitoring Board (GPMB) emphasised in 2021 the critical importance of strengthened independent monitoring to incentivise action and engender greater mutual accountability. The GPMB highlighted that independence is key; a monitoring body must be “autonomous, unconstrained by political, organizational, operational or financial considerations”. The IPPR former co-chairs’ latest, mid-2024 report “No Time to Gamble” further emphasises the importance of independent assessment of pandemic preparedness accountability. The report calls for an independent monitoring body, alluding both to the GPMB and to climate change models, as well as an implementation and compliance mechanism.

However, the intended compliance mechanisms in neither the Revised IHR nor the Proposal for a Pandemic Agreement involve independent bodies. Further, the elaboration of the mechanisms in the respective texts leaves their tasks and modes of operation subject to ongoing work, which will be carried out by the States Party. The compliance machinery, in a word, is still underdeveloped, and it appears that compliance matters will be kept “in-house” in that States will maintain full control over all relevant processes.

Specifically, in the Revised IHR, WHO members have decided on two institutional implementation and compliance mechanisms. The first institutional mechanism operates at the domestic level. The Revised IHR require each State Party to designate a “National IHR Authority” to coordinate the implementation of the Revised IHR within that jurisdiction (Art 4 Revised IHR) and Art 4 (1 bis) Revised IHR). The second institutional mechanism operates at the international level. The Revised IHR establishes a “States Parties Committee for the Implementation of the International Health Regulations (2005)” comprising all States Parties meeting at least biannually to facilitate the Regulations’ effective implementation, in particular Art 44 and Art 44bis focussing on collaboration, assistance and financing (Art 54bis Revised IHR). 

This Committee notably comprises State Parties rather than independent experts. In this respect, it is more like various Regional Fisheries Management Organisation (RFMO) implementation and compliance committees, as compared with environmental agreements that have independent expert implementation and compliance committees, such as the Paris Agreement. The Committee is to establish a subcommittee from whom it will receive technical advice, so there is a degree of scope for obtaining expertise from among member States. Apart from this, Art 54bis provides simply that the Committee shall be facilitative and consultative in nature only, and function in a non-adversarial, non-punitive, assistive and transparent manner. The Committee is also to have the aim of promoting and supporting learning, exchange of best practices, and cooperation amongst States Parties for the effective implementation of the IHR (Art 54bis (1) Revised IHR). Co-chairs of the WHA Working Group on amendments to the International Health Regulations (WGIHR) have published their views that Art 54bis reflects the extent of what it was possible to achieve in the present political environment.

Turning to the Proposal for a Pandemic Agreement we find that, in addition to Article 23 reports to the Conference of the Parties on their implementation of the Pandemic Agreement, with the COP regularly taking stock of implementation, there is presently a draft provision that focuses on parties’ achievement of preparedness, in Article 6(3):

“With the aim of promoting and supporting learning among Parties, best practices, and accountability and coordination of resources, an inclusive, transparent, effective and efficient pandemic prevention, preparedness and response monitoring and evaluation system shall be developed, implemented and regularly assessed, by WHO in partnership with relevant organizations, building on relevant tools, on a timeline to be agreed by the Conference of the Parties.”

It would lie with the WHO to develop, implement and continue to assess such a monitoring and evaluation system. For instance, this might take the form of a scheme the WHO has been piloting in recent times: a “Universal Health Preparedness Review“(UHPR) described as a “voluntary, transparent, Member State-led peer review mechanism”. The UHPR will have a national and a global phase although working methods for the global phase are still in development. Pursuing the UHPR project is in line with the 2021 recommendation of the WHO’s Review Committee on the functioning of the IHR 2005 during the COVID-19 Response, that “WHO should work with States Parties and relevant stakeholders to develop and implement a universal periodic review mechanism to assess, report on and improve compliance with IHR requirements, and ensure accountability for the IHR obligations, through a multisectoral and whole-of-government approach”. Introducing a mechanism to foster whole-of-government accountability was also supported in the 2021 report of the WHO’s Independent Oversight Advisory Committee (IOAC) and the IOAC also advocated ensuring stricter compliance with the IHR 2005, together with stronger international solidarity. 

If the UHPR is to be the way forward, its effectiveness will be critical. But conceptually, modelling WHO monitoring for pandemic preparedness on the Universal Periodic Review (UPR) process employed in the human rights sphere seems an unusual fit. The UPR concept brings with it overtones of the special sensitivity of States to potential criticism of their human rights records. Because pandemics affect all countries, it seems inappropriate in some respects to carry such a sensitivity over to the field of pandemic law. When it comes to contagious diseases the preparedness of any one State may be definitive for all States.

Evaluation

Are the compliance aspects of the Revised IHR combined with those of the Proposal for a Pandemic Treaty ultimately disappointing, or progressive? How much promise do they hold in helping ensure the world can hope to remain free of future pandemics and pandemic emergencies? Will they work effectively to bring non-compliant States into alignment with their obligations, especially in terms of developing core capacities? Some might suggest not. The compliance mechanisms we see are a patchwork, they involve no independent expert scrutiny of States, they are underdeveloped, and nowhere do they indicate any sanction for failures in implementation and compliance.

But should we be thinking of compliance in a less binary way? Kingsbury has urged the importance of appreciating law as more than a set of rules and decisions and progressing the compliance research agenda in ways that take account of law’s special character as a social practice, consistent, for instance, with Brunée and Toope’s constructivist insights into the nature of international law. As Kingsbury says, this means we need to conceive of compliance in terms going beyond its “standard empirical definition” as “a reasonable correspondence between legal rules or decisions and the behaviour of those to whom they are addressed” and a corresponding preoccupation with their violation”. Compliance can be thought of instead as a process involving a range of interacting actors and institutions.

Another approach is to realise that in the contemporary world, the diverse causal mechanisms (Young) that function to help bring about compliance often operate simultaneously. These include not only collective action mechanisms grounded in what March and Olsen have called the “logic of consequences”, but also social practice mechanisms based on the assumption that States experience an impetus to comply with a regime due to its normative effect, and because it is appropriate to comply, according to March and Olsen’s “logic of appropriateness”. Compliant conduct may then become routinised. Causal mechanisms include also realignment mechanisms, acting through policy processes and actors within states, such as domestic interest groups, agencies and other subnational actors.

Realities do appear to have outpaced aspects of the compliance debates of the late 1990s. In today’s era of intensified global interdependence, sanctions for non-compliance are increasingly inbuilt in the circumstances giving birth to a new treaty. This is to say that it is becoming increasingly rational for States to comply as a matter of self-interest with treaties designed to address problems such as pandemic control, climate change or conservation of high seas biodiversity. The situations in which the facilitative compliance theory set out in Abram and Antonia Chayes’ 1998 book The New Sovereignty was built have continued to evolve. A facilitative approach is also a rationalist approach.

Does all this mean, at the end of the day, that the approach to compliance in the Revised IHR and the Proposal for a Pandemic Treaty is ultimately more valuable than alternatives? Unfortunately not. The Revised IHR and the Proposal for a Pandemic Treaty do provide aspects of what is most needed to help bring about implementation and compliance, but they are insufficient. New pathogens presently emerging into circulation remind us of the political courage and commitment needed to establish more robust arrangements, including international accountability machinery.

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