INTERNATIONAL LAW AND ETHICS APROPOS THE COVID-19 PANDEMIC
By: Devarshi Singh*
The 2019-2020 novel coronavirus (2019-nCoV) outbreak, discerned for the first time in Wuhan, China, has emerged to become the focal point of the international society’s concern. The virus in focus is from the same microbe category as the Severe Acute Respiratory Syndrome (SARS), which was also the progenitor of a health problem of extreme proportions in China that encompassed large swathes of the world from 2002 to 2003.
In January 2020, coronavirus SARS-CoV-2 the reason for an outbreak of severe pneumonia, now known to be a complication of the coronavirus disease 2019 (COVID-19). Since then, the infirmity has spread alarmingly, with the World Health Organization (WHO) terming the outbreak as a pandemic on 11th March. At the time of writing, the tally of infected stands at more than 93 million and close to 1,994,440 deaths have been reported worldwide as per data by the COVID-19 dashboard by the Centre for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU).
As the pandemic rages on, states throughout the world have struggled to augment their efforts. Pre-emptive measures entail a gamut of restrictions spanning from issuing injunctions, compulsory quarantines and isolating infected individuals. In addition, they also include outright bans on travel and effecting the cordoning-off of cities and in certain instances, countries.
THE INTERNATIONAL HEALTH REGULATIONSREGIME
On 15 June 2007, International Health Regulations 2005 (IHR 2005) took effect in 193 countries, 2 years after its formal adoption by the World Health Assembly on 23 May 2005. The states, however, had the prerogative of rejections or have reservations as regards to the regulations. The IHR 2005 is an update of its predecessor IHR 1969, originally adopted in 1951. Reforming the IHR commenced in 1995 and the emergence of the SARS in 2003 led to the work being expedited.
There were certain similarities among the two legislations as the IHR 1969 also encapsulated provisos on apprising the scheduled diseases, preventive measures, provisions for travellers, access points, and transference through various modes of travel, but its ambit was restricted to provisions applicable to diseases namely: cholera, plague, yellow fever etc. and it lacked fluidity to deal with contemporary and emerging health hazards. A multitude of examples can be used to corroborate that only a streamlined and collective approach can curb the worldwide propagation of epidemics. The collective international response to the SARS crisis may have arisen as a paragon regarding disease control, but literature from World Health Organisation has shown that the disease could be brought under control by following the public health practices e.g., self-isolation of the symptomatic cases and effecting quarantine upon their contacts.
The SARS crisis demonstrated that the advent of factors like globalisation, climatic and societal changes will aggravate the emergence of novel infections in the coming times as opposed to the age when earlier versions of IHR were in place.
In light of these developments, the most significant inclusion in IHR 2005 was of the disease surveillance system, termed as the Public Health Emergency of International Concern (PHEIC). Article 12 of the International Health Regulations, endows the WHO’s Director General with the authority to promulgate a PHEIC. The DG can only do so after consulting with an Emergency Committee, as defined under Article 48 IHR 2005. A PHEIC is recognised in Article 1 IHR 2005 as an event that constitutes a public health risk to other States through the international spread of disease, and potentially requires a coordinated international response. Under the purview of the IHR 2005, state parties are legally liable to report all events that may constitute a PHEIC. The agreement entails a decision apparatus to be used by the states, to gauge the risk posed by an event that may be regarded as a PHEIC.
Whether an outbreak warrants a PHEIC or not should essentially be adjudicated with the assistance of the epidemiological statistics at hand. In adherence to Article 7 IHR, the countries are required to furnish all public health information that is relevant. On the other hand, Article 9(1) IHR provides that the WHO has the prerogative to consider reports from independent sources as well whereas the sole focus of IHR 1969 was based upon documented proclamations from WHO member states.
However, it is an obligation for the organisation under Article 10(1) IHR to substantiate the figures provided through non-governmental avenues with the states. Nevertheless, Article 10(4) IHR2005 offers the likelihood to cast aside state parties in view of non-cooperation.
Article 6 IHR 2005 obligates the states to inform about any occurrence that can account for a PHEIC within 24 hours. In recent times, research reports from WHO have brought up analysis of 440 incidents related to health issues in 2019. Formerly, the incidence of a single or two cases amongst the reports was sufficient for the Director General to summon an Emergency Committee to deliberate upon the declaration of a PHEIC.
Through the provisions of Article 15 IHR 2005, the WHO can issue temporary recommendations after declaring a PHEIC. They may comprise of, inter alia, avoiding the imposition of travel and commercial proscriptions that are more restrictive than required, whilst specifying the ones that count as preferable ones.
Violations of the IHR rules do not lead to penalties. Moreover, since the recommendations only possess persuasive value, there are no direct ramifications of any legal nature. On paper, resolution of disagreements is attainable under Article 56 IHR 2005 that lays down international duty. Although, these provisions have never been adduced till now.
In addition, the IHR is replete with references regarding human rights, though mostly focusing on cross-border visitors. Although, with closer scrutiny of the regulations, it’s still obscure whether Article 43 IHR 2005, which provides for the ratification of supplemental public health systems, is also germane to a purely domestic dimension. In the context of the present COVID-19 scenario, scrutiny of the administrative acts done during its breakout should be done in an analytical manner centred around citizens’ rights.
THE LEGAL AND ETHICAL ISSUES
In 2005, the World Health Assembly proposed to its Member States, the resolution to develop plans of preparedness for pandemic influenza on a nationwide scale. In reply to this, many states devised plans although analyses have shown sizeable differences within countries of Europe and the Asia-Pacific region when it comes to the terms of their pandemic planning and implementation. For instance, A number of countries—Thailand, China, and, to a lesser extent, Vietnam—had embarked upon a strategic plan to bolster future capacity in pandemic preparedness. Other nations, such as Australia, New Zealand and Hong Kong took a strategic approach analogous to that of most European plans. These strategic plans centred on the management of presently available resources and preparation for the distribution of resources like stockpiled antiviral agents and vaccines. The difference of approaches within the region differs from the uniform plan of action taken by European countries.
The WHO has issued a checklist to aid nations in their forethought as a section of its work regarding global pandemic preparedness. It divides elements into two categories, namely, essential and desirable, to help nations array their planning activities. Essential elements are classified as those that should be considered by all countries developing an influenza preparedness plan, irrespective of their resources. The list encapsulates cogitation of legal and ethical issues as a segment of nationwide preparation for influenza pandemics. Within this, consideration of legal issues is listed as essential while that of the ethical issues as desirable.
Within its catalogue of legal issues, WHO includes the necessity to recognise the merits and demerits of promulgating a state of emergency in the course of a pandemic and necessitates the need to ascertain the existence of a national level legislative framework.
Moreover, it’s asserted that an assessment is made, in relation to the legality of the public health measures which may be needed to be implemented during a pandemic, including closures of places of public gathering, blanket bans on travel, provisions of isolation and quarantine as well as proposals regarding social distancing.
Regulations and strategies relating to inoculation of workers in the health care sectors, essential services, and those at high health hazards should also be analysed if the necessity arises. It also entails issues relating to maintaining accountability for the well-being of retired health care workers and volunteers assisting during a pandemic. To add to that, liability issues relating to manufacture and use of antiviral agents and vaccines, and the need to consider whether influenza should be added to the framework concerned with safeguards against occupational hazards, are also included.
As mentioned previously, the WHO bulletin enlists a number of ethical issues to be taken into consideration as part of national pandemic planning, as well. These ethical issues include equitable allocation of scarce resources such as antivirals or vaccines; issuance of vaccination of workers in the health care and essential services. Matters connected to curtailment of privileges of movement through quarantine or confinement; and the establishment of an ethical framework for research.
The need for an effective legal framework for pandemic plans and for measures needed for other public health emergencies has impelled many countries to re-assess their laws regarding public health. In countries such as Canada, Australia, China, Hong Kong, and Singapore, the outbreak of SARS led to a detailed evaluation of public health laws. In the United States, the establishment of a Model State Emergency Public Health (MSEPH) Act provided a push for a state level legislative reform. WHO has acknowledged the requisites of planning to be tailored for local conditions and to be apposite culturally, in its Ethical Considerations in Developing a Public Health Response to Pandemic Influenza.
Taking the developing nations into consideration, objections have been raised on the over-reliance on high technology screening, a measure more apt for the developed nations. Examples and case studies have demonstrated in South-east Asian countries such as Cambodia, Indonesia, Lao PDR, Taiwan, etc, that multifarious factors including effective coordination with the public health structure, are pivotal for advancing safeguard measures.
As per the WHO’s observation, law is a key factor in the establishment of sound policymaking for pandemic management. The issues and alternatives are defined as parts of a legal framework to ensure transparent assessment and justification of the measures that are being considered, and to ensure coherence with international legislation (International Health Regulations). Ethical topics are vital to the formation of a legal order for pandemics as WHO remarks they are constituents of the regulatory framework that's required to evaluate the cultural suitability of measures like quarantine or selective vaccination of pre-determined groups at risk.
The soft-law advisory by the WHO towards structuring the national pandemic plans leaves scope for variations in national approaches that reflect cultural, institutional or other differences. Alongside these measures, in times such as these, the need for WHO to streamline their actions and implement the reorganization plan rolled out in 2019, to avoid a repeat of the mismanagement caused in the Ebola outbreak owing to the lack of coordination between the African regional offices and the headquarters is immense.
In order to fix what is sometimes touted as the inherent deformity of the agency, an underlying restructuring of the W.H.O.'s charter needs to be mandated. The regional personnel are autonomously appointed and also have a huge workforce and expenditures that they are unwilling to curtail. In some instances, the regional offices also desist from coordinating with Geneva.
Most of the strategy for the restructuring seemed simply procedural. This included creating a digital health strategy department, making the salaries of certain scientists equal to that of executives, and naming a chief scientist and an assistant director-general for preparedness to emergency situations. In addition, there are provisions of the expedition of the recruitment process which now has to be done within 80 days and the new framework for managers to scrutinize their workers’ performance every month instead of twice a year.
Another proposed change is the mobility program which will result in the bureaucrats being rotated around the regional offices of W.H.O. For example, in Cairo, Brazzaville or Manila et al. This policy will be following the UNICEF model which is known for rotating its staff pan world, thereby making them more well-versed with regional problems and helping to curtail the systems of influence.
Global cooperation, especially in the sphere of public health and economic development, is highly essential given the conditions the world finds itself in. The world needs to collaborate and invest in both financial and humanitarian terms to overcome the cataclysm that is the COVID-19 pandemic.
* The author is a student at GLC, Mumbai.
*Image Source: https://www.practicalethics.ox.ac.uk/pandemic-ethics