Pandemic Intrigue in Geneva: COVID-19 and the 73rd World Health Assembly

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The 73rd World Health Assembly took place on 18 and 19 May, 2020. It is a yearly gathering of all 194 Member States of the World Health Organization (WHO) taking place in its headquarters in Geneva, Switzerland. As established in Articles 18 to 23 of the Constitution of the WHO, the World Health Assembly is its maximum decision-making body. Resolutions and decisions are discussed, approved or rejected, including subjects such as the functioning of the WHO´s existing programmes, budgetary matters, or the need to respond to emerging health challenges. Exceptionally, the Assembly may adopt conventions and regulations legally binding for Member States. Both the International Health Regulations (IHR) and the Framework Convention on Tobacco Control were approved within the aegis of World Health Assemblies – with the former instrument entering into force automatically after eighteen months for all WHO Member States, whereas the latter required separate national procedures of ratification.

So far, the World Health Assembly has taken place in an uninterrupted fashion since 1948. As expected, this year´s meeting was centered on the COVID-19 pandemic. It is arguably the greatest global health challenge the Assembly ever had to deliberate upon.

The worst-case scenario of an unprecedented deadlock between Member States did not occur. Instead, the Assembly was mostly filled with the usual diplomatic protocol. With one singular exception, a procession of Health Ministers from the different WHO Member States and representatives of other international and regional institutions reasserted their commitment to collaborating with the organization´s efforts. Furthermore, national representatives did not waste the opportunity to praise their own countries´ handling of the pandemic.

Besides the usual protocol, this year´s World Health Assembly provided several salient issues. For one, it took place mostly online due to the need for upholding social distancing. Such a setting provided for a challenge, not just from the technological point of view. Despite the visible learning curve of conducting the agenda through an online platform, a central resolution achieved sufficient consensus. This is the focus of the following lines. 

A Small but Significant Step Forward? The “COVID-19 Resolution”

The background of the clash between two major powers, the United States and China, took the spotlight and threatened to overshadow deliberations altogether. If the meetings were ever supposed to be non-political in nature, this World Health Assembly was anything but.

Expectations were running high on whether China and the United States would express their hostility through statements at the Assembly, with the WHO caught in the middle. These expectations were heeded to a certain extent. In the case of the speech by U.S. Secretary of Health and Human Services, Alex Azar, he blamed the WHO directly for not securing and sharing information on COVID-19 in a timely manner. This delay, according to Secretary Azar, “cost many lives”. Moreover, in the middle of the Assembly, the President of the United States, Donald Trump, published a “self-explanatory letter” (his words) detailing several accusations against the WHO and China in light of their initial handling of COVID-19. The letter included an open threat to the organization of full withdrawal by the U.S. unless it falls in line with its (broadly formulated) wishes. On top of this, the issue of Taiwan´s potential status as an observer loomed large, though the proposal for its inclusion in the agenda ultimately failed to gain traction.

Yet despite the tense political background, a resolution was approved by the Assembly with the explicit support of 140 states, and ultimately adopted by consensus i.e. without any vocal opposition. The resolution, though not creating any obligations for Member States, is a political document which can guide future decision-making within and beyond the WHO. Highlights of the so-called “COVID-19 resolution” include: 1) acknowledging the WHO´s “leadership role” during the handling of the pandemic – though this was by no means worded as a general approval of its actions; 2) a call for deeming the eventual COVID-19 vaccine and other medical products as a “global public good”, indicating an open preference for granting access to all countries, foreshadowing incoming debates related to the international intellectual property regime; and, 3) a request to the WHO Director-General to institute an “impartial, independent and comprehensive evaluation” of the IHR´s implementation, and particularly of the WHO´s response. In the following lines, I will focus on this last point.

The Ongoing and Upcoming COVID-19 Inquiries

The resolution echoed similar preceding statements by multiple governments on instituting an independent commission of inquiry. The WHO Director-General openly affirmed he would summon such an investigation – at the “earliest appropriate moment”. Separately, China accepted to collaborate with an inquiry conducted by the WHO. Yet further details are still open.

The United States bases its condemnation in the foregone conclusion that both the WHO and China are to blame for its own delays. As already argued here by Michael Becker, calling for a commission of inquiry with such a starting point does not bode well for the goals of a deeper investigation.

Conversely, while the COVID-19 resolution requests an evaluation of the WHO´s response, it does not mention China by name. The wording is still sufficiently broad so as to include an assessment of the country´s actions, as it refers to “the functioning of the IHR” in general. This would potentially encompass whether China reported the disease in a timely fashion and with sufficient transparency, as required by Articles 6 and 7 of the IHR. Moreover, whereas elsewhere it has been argued that a commission of inquiry could, and also should engage in fact-finding externally to the WHO, the COVID-19 resolution expressly mentions two intra-WHO mechanisms. One option is the ongoing Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme. It already issued an interim report without offering any damning conclusions. The final results are expected to be issued after the pandemic´s peak has receded. As it is programme-focused, this Committee has a comparatively narrower mandate.

The other option would be an IHR Review Committee, as provided by Article 50 IHR. Review Committees were already instituted to evaluate both the WHO´s and countries´ actions during the H1N1 influenza pandemic of 2009-2010, and the West African Ebola outbreak of 2014-2016. In comparison to the Independent Oversight and Advisory Committee, the mandates of IHR Review Committees are comparatively broader. In fact, the Review Committee Report for the Ebola response pointed in 2016 to “delays in notification” by national authorities (namely, from Guinea) as one factor for the initial unchecked spread of the virus. The report also underscored the WHO´s own delay in raising the alarm. While these findings were non-binding in nature, they did provide a more thoroughly documented factual account of how the IHR´s obligations were operationalized. Moreover, they were conducted by persons external to the WHO, albeit they were selected from a pre-existing IHR Expert Roster. A similar procedure could be undertaken for the COVID-19 inquiry.

Given the existing political setting, it is unclear whether an investigation based on the WHO´s existing legal framework will satisfy Member States´ own understandings of an “independent” inquiry, even if it is conducted by external experts. At the same time, an IHR Review Committee would have operational and political advantages. It would draw upon the explicit legal basis provided for by Article 50 of the IHR. The Committee´s terms of reference would not need to be built from scratch, as paragraph 1(c) of the latter provision allows it to “provide technical advice… on any matter referred to it by the Director-General regarding the functioning of these Regulations”. The wording could certainly include further inquiring on the chain of events leading to China´s initial notification to the WHO, namely the pandemic´s beginning in Wuhan. Moreover, as China is legally bound by the IHR, there would be an explicit legal basis for its cooperation, possibly leading to national access to inquirers (as noted here). Otherwise, fact-finding without access would provide a much more limited outlook.

Conclusion: COVID-19 Post-Assembly

The 73rd World Health Assembly managed to build sufficient consensus in terms of at least one significant common objective. The meeting certainly wasn´t frictionless, and the more comprehensive agenda of global health, including non-COVID-19 matters, was postponed to an undetermined date. Yet in a world in which the geopolitical fragmentation is blatant, a modest resolution is a step forward in itself. The incoming inquiries on what happened at the beginning of the COVID-19 pandemic, as well as the WHO´s own response, will be in the spotlight due to the stakes at hand. The outcome of those inquiries will likely be subjected to a level of scrutiny higher than that for H1N1 influenza and Ebola in West Africa. After all, a documented factual account of an event that so profoundly changed the lives of literally billions of persons is a matter of global concern, if ever there was one.

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