WHO Investigation: The World Health Organization’s International Health Regulations and Their Limitations

The International Health Regulations (IHR) is the reference document for the WHO and its 196 signatory states. As a result of globalization and the development of travel during the 1990s, a new version, adopted in 2005, came into force two years later.

The overall purpose of the text 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." To this end, the IHR includes a set of principles and measures that should be applied. This legal instrument is "binding". In particular, it details the provisions to be introduced in places where people and goods transit, such as airports.

The WHO issues recommendations…

Unlike previous versions that specifically targeted certain diseases such as yellow fever, the IHR covers "any human pathology". It establishes obligations for states parties, including the obligation "to notify events that could constitute a public-health emergency of international concern." On December 31st 2019 China notified the WHO of the existence of cases of pneumonia originating from an unknown source. A month later, its director-general, Tedros Adhanom Ghebreyesus, declared an international public health emergency in relation to Covid-19 based on the opinion of the emergency committee.

In practice, the WHO's powers are limited. Thus, in the context of the current pandemic, the institution issues recommendations that states parties are not obliged to follow. For Anne Sénéquier, co-director of the Global Health Think Tank at IRIS (the French Institute for International and Strategic Affairs), it is indisputable: "Although throughout this health emergency the WHO has issued recommendations, the countries decide whether or not to apply them. And therein lies the real problem. As we have seen, it was not the WHO that restricted travel and trade permits, but rather the governments, based on the importance they attached to this new virus from China.”

… but not sanctions

However, the validity and quality of the information from China has been subject to debate. The IHR does in fact include a series of articles regarding the conditions for transmitting information. Gilles Bigot, a partner at Winston & Strawn, a law firm specializing in health law, points out that the IHR "does not provide for sanctions or coercive measures in the event of non-compliance" and adds: "To date, no state has ever been sanctioned by the WHO." On the face of it the risks of non-compliance would appear to be non-existent.

At national level, citizens who file complaints against the members of the government could, in theory, base them on the IHR. As Bigot explains: "Liability can be invoked because of the public authorities’ obligations to ensure compliance with international conventions, with the aim of repairing the damage resulting from a failure to comply with France's international commitments. The state could be held liable for ‘culpable failure to act’.”

Legal immunity

In addition to individual states, the WHO has also been caught up in accusations of mismanagement over this crisis. Residents of Westchester County in New York State have decided to sue the WHO for concealing the danger of the virus. However, the likelihood of success is close to zero. Indeed, "the WHO and some members of its staff, under certain conditions, have immunity from prosecution," the lawyer said, as do diplomatic personnel. This immunity is recognized by the United States. Despite coming under fire from all sides, the director-general of the supranational agency, Dr Tedros, does not therefore risk being sent to prison.