Alessandro Consonni (Italy)
Some reflections on the International Health Regulations (2005) in the light of Covid pandemic
The pandemic caused by the spread of the Coronavirus has led to radical changes in the lives of people around the world. This string of bad luck has shown how in times of crisis societies, although viruses are quite democratic and strike everyone indistinctly, shut themselves away and are reluctant to put up with external interference. The International law, in the form of the International Health Regulations (2005) whose purpose and scope are - pursuant to Article 2 - “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”, turned out to be a totally inadequate instrument as well as not up to the overwhelming challenge.
The International Community, fully aware of the legal framework’s inefficiency, has shown its determination to address the problem by establishing the Intergovernmental Negotiating Body with the aim of drafting and negotiating a WHO convention, agreement, or another international instrument on pandemic prevention, preparedness, and response. To date, there are three possible scenarios. Firstly, there is the possibility of negotiating a post-pandemic treaty - among its supporters there is the President of the European Council, Charles Michel - through the procedure laid down in article 19 of the Constitution of WHO. This would trigger the classic “opt-in” mechanism as pointed out by the subsequent article 20. Secondly, ex article 21, the Health Assembly has the authority to adopt regulations concerning sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease. Unlike the convention, the regulation comes into force for all Members after due notice has been given of their adoption by the Health Assembly, except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice (“opt-out”). Finally, just a reform of the actual IHR could take place.
Regardless of the form chosen, the post-pandemic discipline will have to harmonize with the other branches of international law, above all the fields concerning the protection of human rights. There is an urgent need to enhance the so-called science-policy interface, which incorporates scientific expertise into global policy-making and regulation. By doing so, it will be feasible to avoid national responses to future global health emergencies, based on political decisions not supported by solid scientific evidence. One of the toughest tasks to address will be to regulate intellectual property rights. The new legal framework should bind states to incentivize the voluntary sharing of intellectual property rights and ensure an optimal distribution of healthcare technologies worldwide during pandemics. Furthermore, the funding system will play a key role in finding the right balance between developed and developing countries. The frontiers of medicine already today allow extraordinary progress in safeguarding people’s health, what is missing is their widespread dissemination in the areas of the world where, for several reasons, the current state of medicine, including preventive medicine, is still strongly deficient. A methodological approach, capable of declining at the local level the best practices known and adopted by the most advanced communities, would allow prodigious progress in a short lapse of time.