Punishing Compliance with International Law: The Omicron Variant and the International Health Regulations (2005)

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On 24 November 2021, the government of South Africa reported the presence of a new variant of the SARS-CoV-2 virus to the World Health Organization. The Technical Advisory Group on SARS-CoV-2 Evolution (TAG-VE), an independent group of experts, designated the new variant, denominated “Omicron”, to be a “Variant of Concern” (VOC). The TAG-VE’s preliminary analysis of the evidence indicated that the mutation in the Omicron variant could entail a “detrimental change” for COVID-19 epidemiology. A potential increase of transmissibility, lower capacity of detection through PCR testing, as well as a higher risk of reinfection, are major sources of preoccupation. According to the WHO, existing data on several of these points is growing but still inconclusive.

The hopes of multiple countries, mostly from the Global North, of gradually turning the page on COVID-19 are slowly being shattered by the emergence of the Omicron variant. The long-awaited biennial 2021 Ministerial Conference at the World Trade Organization was postponed. It is yet another dire realization that, as long as the SARS-CoV-2 virus keeps spreading throughout the world, the probability of witnessing dangerous mutations will remain. A stark reminder of how “nobody is safe until everyone is”.

By reporting the spread of the new Omicron variant in its territory, the government of South Africa acted in compliance with the International Health Regulations (IHR) of 2005. The first paragraph of Article 6 mandates States Parties to “notify WHO, within 24 hours after assessing available public health information, of “all events which may constitute a public health emergency of international concern within its territory”. In turn, the second paragraph of Article 6 IHR (2005) obliges States Parties to continue to communicate:

“timely, accurate and sufficiently detailed public health information… where possible including… laboratory results… [as well as] conditions affecting the spread of the disease and health measures employed.”

South Africa’s “reward” for complying with the IHR (2005) has been a series of travel bans imposed on it and other countries, including Botswana, Zimbabwe, Namibia, Lesotho, Eswatini, Mozambique and Malawi. The fact is, South Africa is being punished for going the “extra mile” in fulfilling its international law obligations. It is little wonder that the IHR (2005) have proven to be underwhelming in ensuring an effective rules-based disease surveillance for events like the COVID-19 pandemic.

The situation above sheds light on the lack of rewarding structures under the IHR (2005). At the same time, a resolution was approved by consensus at the World Health Assembly Special Session for proceeding negotiations towards a new Convention or other legal instrument on pandemic response. An intergovernmental negotiating body (INB) was given the mandate to draft and negotiate the legal text. Facing the threat posed by Omicron and the haphazard responses by states throughout the world, the existing disincentives for compliance with the IHR (2005) should be heeded by the INB in order to avoid doubling down on its blind spots.

The following post provides a general overview of the difficult balancing act posed in Article 2 of the IHR (2005), between “protect[ing] against, control and provide a public health response to the international spread of disease”, one the one hand, while “avoid[ing] unnecessary interference with international traffic and trade“, on the other hand. First, a brief overview of past manifestations of these disincentives is put forward. Second, some of the challenges for balancing health security and the proper functioning of international travel and trade are fleshed out. Lastly, conclusions on potential ways forward are formulated.

The Perennial Compliance Gap in Rules-Based Disease Surveillance

A perennial stumbling block for the effective implementation of international disease surveillance has been to incentivize states to openly share information on events within their territory. Former WHO Deputy Director-General Pierre Dorolle described in 1968 the existence of a vicious circle in the International Sanitary Regulations of 1951: States Parties were reluctant to openly share information for fear of disproportionate responses by other states. In return, the latter would base their reactions on incomplete information, often leading to excessive responses.

Throughout the decades, those fears were often proven to be well-founded. Time and again, restrictions on international travel and trade have been at stake in responses to disease outbreaks. It is one of the rare issues bridging the Global North-Global South divide, though certainly the impact of restrictive measures can often be easier or harder to withstand depending on a country´s degree of economic resilience.

In fact, the only time there was a glimpse of an interstate dispute regarding the cross-border spread of disease was not due to a possible non-fulfilment of the obligation to notify the WHO within 24 hours – as hotly debated throughout 2020 regarding China – but rather due to possibly excessive reactions by other states. The government of Turkey reported a cholera outbreak to the WHO in 1970, in compliance with the International Health Regulations of 1969, which were still in force until 1971. As a result, the governments of Bulgaria and Romania restricted travel to the reporting country. The Turkish government launched consultations at the WHO due to what it considered to be a disproportionate response. The dispute was settled before it ever reached third-party adjudication at the International Court of Justice.

International Travel and Trade vs Health Security

Restrictions of international travel and trade are part and parcel of the public health toolkit to fight communicable diseases with cross-border potential. Whether these restrictions are necessary or not depends on evolving empirical evidence. It is not always a straightforward answer, especially at the beginning of a disease outbreak when data is not readily available.

An instance of travel restrictions deemed to be effective even by the usually restrained WHO was the first coronavirus crisis due to SARS-CoV-1 in 2002-2003. Then-WHO Director-General Gro Harlem Brundtland was praised for her actions during the crisis which, among other things, included the issuance of recommendations to restrict travel both to China and to Canada, the most affected countries. The corresponding governments objected on the basis of a potential ultra vires act by the WHO, even though its recommendations did not mean Member States were legally bound to impose travel restrictions. Nevertheless, these two states were worried by the adverse economic and social consequences of being subjected to such measures, regardless of whether other countries felt obliged to impose them or not.

In the IHR (2005), the obligation to refrain from imposing measures that are not more restrictive of international travel and trade than “reasonably available alternatives” is enshrined in its Article 43. The latter is a convoluted provision leading to legal interpretations which are dozens of pages long. The question of when exactly restrictions on international travel and trade are justified is not always clear-cut. After the IHR (2005) entered into force in 2007, restrictions were at stake in multiple subsequent outbreaks, with states from all levels of economic development being at the receiving end. During the H1N1 influenza pandemic, bans on pork meat exports from both Mexico and the United States of America were imposed after they had notified the virus’ spread. These restrictions were the subject of debates at the World Trade Organization’s Committee on Sanitary and Phitosanitary Measures. No panel was ever formed and restrictive measures were eventually lifted. But the economic damage was done.

Later, in the aegis of the Ebola crisis in West Africa – as amply documented by Adam Kamradt-Scott – the governments of Guinea, Liberia and Sierra Leone had to face travel bans from multiple countries despite the WHO’s advice to the contrary. An initial delay by the government of Guinea in reporting the spread of the Ebola virus throughout its territory was assumed to be based on fears of being isolated by the international community. Should that be the case, the ensuing travel bans meant such fears were somewhat well-founded.

At the outset of the COVID-19 pandemic, major controversies on whether travel restrictions are justified or not have led to mixed messages. When declaring the spread of SARS-CoV-2 to be a public health emergency of international concern, the WHO’s Director-General, based upon advice by an Emergency Committee, recommended that “no travel or trade restrictions are recommended” against China. The WHO later qualified such assertion in its own guidelines, affirming that restrictions could be useful to slow down the arrival of a virus and ramp up pandemic response systems. Empirical epidemiological data on these restrictions has offered, to a certain extent, support for the effectiveness of these border restrictions, though usually in conjunction with other public health measures. Ultimately, even when they prove to be effective, their dissuasive role on compliance with states’ reporting obligations remain unheeded.

After Omicron: From Punishing to Rewarding Compliance with the IHR (2005)

It is baffling how, to date, the dissuasive factors for complying with the IHR (2005) have not been addressed through specific legal proposals. The overconfidence in the legally binding status of rules leads to a disregard for real-world dynamics. The fast pace with which Global North states have imposed travel restrictions on South Africa, Botswana, Burundi, Lesotho, Namibia, Eswatini, Mozambique, Malawi, Zimbabwe and others after the Omicron variant was notified showcases why fears of overreaction continue to be proven right. Now that the Omicron variant has been detected in the territories of numerous countries, the proportionality of travel restrictions to mitigate its spread can, and will likely be challenged.

As argued elsewhere by Anne van Aaken and Betül Simsek, the behavioural dimension of state compliance must be explored more in-depth, in order to devise rewards for countries that fulfil their obligations in good faith. In the upcoming negotiations on a potential new convention (or other legal instrument) on pandemic response, the category of global public goods should not only be centred on the need to ensure sharing of medical and public health countermeasures. While vital, the latter are not the only global public goods in pandemics. More than two decades ago, Mark Zacher posited that prompt and accurate information of new and re-emerging pathogens present in other territories fits into that category as well.

A rewards system capable of incentivizing states that are straightforward in sharing epidemiological data during pandemics should be devised. Such a system could offset the negative consequences of other states´ reactions to their notifications. Accurately calculating impact ex ante may not always be feasible. But mechanisms based on an insurance risk, such as the World Bank’s Pandemic Emergency Financing Facility, could be expanded upon and deployed to mitigate the negative impact of travel and trade restrictions on reporting states. Otherwise, the perennial disincentives to report will remain in place. 

In the upcoming negotiation processes undertaken by the INB, the future of a rules-based disease surveillance will have to be pondered. Subsequent pandemics may look quite differently than COVID-19. Yet, under the existing legal regime, one thing is likely to remain constant: states will be wary of the consequences of notifying the WHO promptly and transparently. The recent treatment of South Africa and other African countries risks undermining the prospects of future compliance with the IHR (2005) or any future legal instrument in the field of pandemics. A self-inflicted wound, if there ever was one, for which the international community at large might have to pay dearly.

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