What are the obligations upon States to notify others following the outbreak of disease that may result in an epidemic and could eventually become a pandemic? Is there an international legal framework that governs what a State should do when it is faced with such a health crisis, and who should be notified? These are some of the questions that have rightly been posed in the wake of the outbreak of COVID-19.
The overarching global framework is found in the 2005 International Health Regulations (IHRs), adopted under Articles 21 (a) and 22 of the Constitution of the World Health Organisation (WHO). The purpose of the IHRs is to “prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade” (Article 2). In that respect some of the critical dimensions of the IHRs are surveillance of health events (Article 5), notification (Article 6), information sharing (Article 7), consultation (Article 8), and the designation of responsible authorities within a State who are accessible for communications with the WHO (Article 4). The critical Article 6 (1) notification obligation is that:
Each State Party shall notify WHO, by the most efficient means of communication available by way of the National IHR [International Health Regulations] Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory….
A key phrase is “public health emergency of international concern”, which Article 1 of the IHRs defines as “an extraordinary event which is determined, as provided in these regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response”.
Following such a notification, the relevant State shall continue to communicate with the WHO “timely, accurate and sufficiently detailed public health information” (Article 6 (2)). Annex 2 of the IHRs contains an instrument for assessment and notification of events that may constitute a public health emergency of international concern.
Diseases such as smallpox, SARS, cholera and yellow fever are listed and meet the basic threshold for notification, but COVID-19 because it was unknown at the time the IHRs were adopted is not. Nevertheless, the IHRs anticipate the potential outbreak of such diseases and if “[a]ny event of potential international public health concern, including those of unknown causes or sources and those involving other events or diseases” meet certain criteria then the event is to be notified to the WHO. Threshold questions to be asked in these cases include: Is the public health impact of the event serious? Is the event unusual or unexpected? There are guidelines within Annex 2 to further assist States in answering these questions.
The first WHO Situation Report on COVID-19 was issued on 21 January 2020. The first notification to the WHO China Country Office was made on 31 December 2019 with reports of pneumonia from an unknown cause detected in Wuhan, Hubei Province of China. In the period 31 December-3 January, a total of 44 case-patients with this pneumonia were reported to the WHO, and a new type of coronavirus was identified by the Chinese authorities on 7 January. These initial notifications set off a chain of events that eventually resulted in the WHO’s declaration of a global pandemic on 11 March 2020.
The global debate over the response to COVID-19 has placed a spotlight on China’s WHO notification, and the WHO’s eventual declaration of the pandemic. However, notwithstanding the debate over whether the WHO’s declaration of the global pandemic was delayed, the IHRs make no reference to such a declaration. Rather, the IHRs focus on the determination of the existence of a public health emergency of international concern which Article 12 makes clear requires consensus between the WHO Director-General and the relevant State party. In the absence of such a consensus, an Article 49 Emergency Committee can be convened by the Director-General to assist in making such a determination. In the case of COVID-19, an Emergency Committee first met on 22 January 2020.
Any review of the IHRs arising from COVID-19 could be benchmarked against other international legal regimes requiring notification following an incident of international concern. At a basic level, the principle of good neighbourliness applies and is especially relevant to events that can have transboundary consequences for neighbouring States such as damage to a dam resulting in flooding of a transboundary watercourse as reflected in Principle 18 of the 1992 Rio Declaration on Environment and Development.
A treaty that creates a higher obligation upon States to notify others following an accident or emergency is the 1986 Convention on Early Notification of a Nuclear Accident negotiated in the immediate aftermath of the 1986 Chernobyl nuclear accident. Any accident involving facilities or activities of a State party from which a “release of radioactive material occurs or is likely to occur”, which has resulted or may result in an “international transboundary release that could be of radiological significance for another State” (Article 1) creates an obligation of notification by the State party to the International Atomic Energy Authority (IAEA) (Article 2). The IAEA shall then inform other States and international organizations of the incident. The operation of these procedures was successfully highlighted following the 2011 Fukushima Daiichi Nuclear Power Station accident when Japan notified the IAEA of the incident.
A review of the IHRs arising from the COVID-19 pandemic would gain from asking whether the current notification requirements are sufficiently robust to deal with diseases that can rapidly spread to nearly all parts of the globe in an era when peoples can easily move across boundaries.