Maurer School of Law: Indiana University Digital Repository @ Maurer Law
Articles by Maurer Faculty Faculty Scholarship
2006
The New International Health Regulations: An Historic Development for International Law and Public Health
David P. Fidler Indiana University Maurer School of Law, [email protected]
Lawrence O. Gostin Georgetown University Law Center
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Recommended Citation Fidler, David P. and Gostin, Lawrence O., "The New International Health Regulations: An Historic Development for International Law and Public Health" (2006). Articles by Maurer Faculty. 370. https://www.repository.law.indiana.edu/facpub/370
This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The New International Health Regulations: An Historic Development for International Law and Public Health DavidP. Fidlerand Lawrence 0. Gostin
sis and malaria, and new diseases, such as HIV/AIDS new International Health Regulations (IHR) and viral hemorrhagic fevers. Concern also existed that onhe WorldMay 23, Health 2005.1 Assembly The new (WHA) IHR represent adopted the some governments lacked the capacity or political will culmination of a decade-long revision process and an to report and respond to diseases of international im- historic development for international law and public portance. By 1995, WHO understood that the revised health. The new IHR appear at a moment when public IHR would have to break with traditional approaches health, security, and democracy have become inter- and construct a novel framework for health and secu- twined, addressed at the highest levels of government. rity in an era of accelerating globalization. The inno- The United Nations (UN) Secretary-General Kofi vative framework began to emerge with WHO's first Annan, for example, identified IHR revision as a prior- proposal in January 1998, which had a broad scope and 5 ity for moving humanity toward "larger freedom."2 This permitted the use of non-governmental data sources. article analyzes the new IHR and their implications for The outbreak of Severe Acute Respiratory Syndrome global health and security in the 21st century. (SARS) in 2003 accelerated the IHR revision process. WHO viewed its response to SARS as a "roll-out" of The IHR and the Revision Process ideas being crafted in the IHR revision process. 6 In The WHA instructed the WHO Director-General (DG) the wake of WHA resolutions on SARS and the IHR to revise the IHR in 1995 because the Regulations did revision process in May 2003, 7 WHO issued a com- not provide an effective framework for addressing the plete proposed text in January 2004, which served as international spread of disease. 3 Doubts about the the basis for WHO's regional consultations through IHR's effectiveness had, however, been present long the spring and summer of 2004.8 These consultations before 1995.4 The critiques identified the narrow scope led to a revised proposed text, issued in September of the regulations (applying only to a small number of 2004 for the first intergovernmental negotiations held infectious diseases), the lack of compliance by states, in November 2004.9 Following the first negotiating and the absence of a strategy for responding to rapid session, the Chair of the negotiations promulgated a changes in public health's global economic and techno- "Chair's text" for consideration at the second negotiat- logical environments. ing session in February 2005.10 The negotiations were The resurgence of infectious diseases in the 1980s completed in May 2005 prior to the WHA's annual and 1990s highlighted the IHR's ineffectiveness. Par- meeting," at which the Assembly adopted the new ticularly troublesome were the IHR's inapplicability IHR. to the spread of endemic diseases, such as tuberculo-
David P. Fidler, J.D., is Professor ofLaw and Harry T. Ice Faculty Fellow, Indiana University School ofLaw - Bloomington and Senior Scholar,Centerfor Law and the Public'sHealth, Georgetown andJohnsHopkins Universities.Lawrence 0. Gostin, J.D., L.L.D., (Hon.), is Associate Dean and Professor, Georgetown University Law Center; Professor,Johns Hopkins Univer- sity; and Director,World Health OrganizationCollaborating Center on PublicHealth Law and Human Rights. Dean Gostin is Adjunct Professorand Fellow at Oxford University and a lifetime Member of the Institute ofMedicine.
DEFINING THE BEGINNING AND THE END OF HUMAN LIFE * SPRING 2006 INDEPENDENT
The New IHR: An Important Development in trade law emphasize that public health is embedded Global Health Governance in an international system that facilitates economic The new IHR contain 66 articles organized into ten activity through globalized markets. Finding effective parts and include nine annexes (see Table). The pur- ways of balancing public health and international eco- pose of the new IHR is "to prevent, protect against, nomic activity has become critically important to the control and provide a public health response to the success of international trade and international health international spread of disease in ways that are com- governance. mensurate with and restricted to public health risks, The new IHR radically depart from the traditional and which avoid unnecessary interference with inter- approach informing the old IHR. The new IHR trans- national traffic and trade" (Article 2). The IHR seek to form the international legal context in which states will balance the state's right to protect its people's health exercise their public health sovereignty in the future. As with obligations to take health-protecting actions in examined below, the new IHR expand the scope of the ways that do not unnecessarily interfere with interna- IHR's application, incorporate international human tional trade and travel. rights principles, contain more demanding obligations The new IHR capture this balancing task by provid- for states parties to conduct surveillance and response, ing that "States have.. .the sovereign right to legislate and establish important new powers for WHO. and to implement legislation in pursuance of their The transformative nature of the new IHR connects health policies. In doing so they should uphold the to growing consensus on the importance of public purpose of these Regulations" (Article 3.4). By cali- health to global governance in the 21st century. Over brating health and trade interests, the IHR resonate the decade during which the IHR revision unfolded, with international trade law under the World Trade it became apparent that public health had emerged as Organization (WTO), which also recognizes the state's critical to virtually every major global governance issue, right to restrict trade for health purposes but limits ranging from national and international security, trade, 12 this right to ensure that restrictions are necessary. and economic development, to environmental protec- The synergies between the new IHR and international tion and human rights. The new IHR not only trans- form the traditional approach to international disease spread but Table they also represent a politically Structure and Content of the New 9HR important opportunity for pub- Part Articles Substance Matter lic health to engage expansively with the international commu- Part I 1-3 Definitions, Purpose, and Scope, Principles and nity. Responsible Authorities Part II 5-14 Information and Public Health Response Part III 15-18 Recommendations Scope of the New IHR: An Part IV 19-22 Points of Entry All-Risks Approach Part V 23-34 Public Health Measures As indicated above, the old IHR Part VI 35-39 Health Documents applied only to a short list of in- Part VII 40-41 Charges fectious diseases whose spread Part VIII 42-46 General Provisions Part IX 47-53 The IHR Roster of Experts, the Emergency Committee, and was historically associated with the Review Committee trade and travel (e.g., cholera, Part X 54-66 Final Provisions plague, and yellow fever). The Annex I Core Capacity Requirements for Surveillance and Response Regulations now encompass and for Designated Airports, Ports, and Ground Crossings public health risks whatever Annex 2 Decision Instrument for the Assessment and Notification of Events their that May Constitute a Public Health Emergency of International Concern origin or source (Article Annex 3 Model Ship Sanitation Control Exemption Certificate/Ship Sanitation 1.1), including: (1) naturally Control Certificate occurring infectious diseases, Annex 4 Technical Requirements Pertaining to Conveyances and whether of known or unknown Conveyance Operators etiological origin; (2) the po- Annex 5 Specific Measures for Vector-Borne Diseases Annex 6 Vaccination, Prophylaxis, and Related Certificates tential international spread of Annex 7 Requirements Concerning Vaccination or Prophylaxis for non-communicable diseases Specific Diseases caused by chemical or radiolog- Annex 8 Model Maritime Declaration of Health ical agents in products moving Annex 9 Health Part of the Aircraft General Declaration in international commerce; and (3) suspected intentional or ac-
JOURNAL OF LAW, MEDICINE & ETHICS Fidler and Gostin cidental releases of biological, chemical, or radiological 31.2, and 43.1). These disciplines also apply to WHO substances. recommendations made under the new IHR (Article This "all risks" approach embodies an important con- 17). All health measures must be applied in a transpar- ceptual shift concerning public health's role in the IHR. ent and non-discriminatory way (Article 42). In addi- Trade calculations determined the old IHR's scope, but tion, states parties must treat travelers with respect for risks to human health define the new IHR's scope. The their dignity, human rights and fundamental freedoms result is a set of rules with more public health legiti- and minimize any discomfort or distress associated macy, flexibility, and adaptability. This expanded pub- with health measures, including by treating them with lic health approach is found throughout the new IHR. courtesy and respect; taking into consideration their Reporting health events, handling epidemiological gender, socio-cultural, ethnic, or religious concerns; data, making WHO recommendations, and limiting and providing adequate food, water, accommodation, national health measures apply across the spectrum of baggage protection, medical treatment, and means of health events. The expanded scope creates a more de- communication for quarantined or isolated travelers manding framework than anything that ever appeared (Article 32). in the traditional approach. The extent to which the new IHR incorporate human rights principles means that international human Incorporation of Human Rights Principles: rights law is relevant to the interpretation and imple- Autonomy, Privacy, and Liberty mentation of the new IHR.15 The Regulation's incor- The traditional approach to international disease poration of human rights will suffer, however, if states spread developed prior to the emergence of interna- parties do not integrate human rights thinking into tional human rights law. The new IHR incorporate the operation of their respective public health systems. human rights principles, recognizing the effects of pub- As human rights problems with HIV/AIDS and other lic health interventions on civil and political rights, such public health concerns suggest, making the new IHR's 3 as security of person and freedom of movement.1 human rights elements effective will require commit- ment and vigilance. WHO and states parties should The New IHR and GeneralHuman Rights Principles have human rights principles in mind as they build the The new IHR proclaim that "[t]he implementation public health capacities required by the new IHR. of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of Informed Consent and Privacy persons" (Article 3.1). This provision raises the ques- The new IHR also contain provisions on the important tion whether the new IHR conform to existing inter- human rights areas of informed consent and privacy. national human rights principles. For a public health States parties cannot apply health measures to travel- measure to restrict a civil and political right lawfully, ers without their prior express informed consent, ex- the measure must (1) respond to a pressing public or cept in situations that warrant compulsory measures social need; (2) pursue a legitimate aim; (3) be propor- (Articles 23.3 and 31.2). The new IHR also reflect the tionate to the legitimate aim; and (4) be no more re- right to privacy by requiring states parties to preserve strictive than is required to achieve the purpose sought the confidentiality of personally identifiable informa- by restricting the right.14 The rights-restricting mea- tion they receive from other states parties or WHO sure must also be implemented in a non-discrimina- (Article 45.1). States parties and WHO must ensure tory manner (International Covenant on Civil and Po- that disclosure and processing of personal informa- litical Rights (ICCPR), Articles 2.1 and 26). Individuals tion in order to address a public health risk protects deprived of liberty must be treated with humanity and individual privacy (Article 45.2). The Regulations also respect for the inherent dignity of the human person require WHO to respond to individuals who want to (ICCPR, Article 10.1). review personally identifiable data WHO possesses The new IHR generally reflect the requirements about them (Article 45.3). in international human rights law. The Regulations Although an improvement over the traditional ap- require states parties to identify a public health risk proach in terms of recognizing the importance of in- that justifies imposing health measures against per- formed consent and privacy, problems and questions sons (Articles 23.2, 31.1, 31.2, and 43.1), apply an ap- remain. For example, the new IHR fall short in terms propriate health response to such risk (Articles 23.2, of protecting human rights with regard to compulsory 23.5, 30, 31.2, and 43.2), and implement measures measures applied in the absence of informed consent. that are no more intrusive or invasive of persons than The rules relevant to compulsory measures only oblige reasonably available alternatives that would achieve states parties to apply the least intrusive and invasive the level of health protection desired (Articles 23.2, measure with respect to medical examinations but not
DEFINING THE BEGINNING AND THE END OF HUMAN LIFE * SPRING 2006 INDEPENDENT
The new IHR require WHO to share information technical resources to support capac- it receives from non-governmental sources with ity-building. Although the new IHR urge states parties to provide finan- all states parties and relevant intergovernmental cial and technical resources, these organizations when necessary to enable r esponses provisions are either non-binding to public health risks. (Article 13.5) or weak (Article 44.1). Given the financial demands created by other global health problems, such to vaccinations, other prophylaxis, isolation, or quaran- as increasing access to HIV/AIDS treatment16 and tine (Articles 23.2 and 31.2). In addition, the Regula- meeting the health-related Millennium Development tions do not include due process protections necessary Goals,"7 the new IHR's silence on how the economic when states apply compulsory measures. demands of the core capacity objectives will be met is In terms of privacy, the new IHR mandate confiden- a serious problem for which the new IHR provide no tial treatment of personal health data by states parties apparent answers or strategies. "as required by national law" (Article 45.1). Similarly, the requirement of states parties to protect privacy Notification Obligations: Reporting in addressing public health risks must be fulfilled "in Health Events to WHO accordance with national law" (Article 45.2). These The new IHR require states parties to notify WHO of provisions may make privacy protections under the all events within their territories that may constitute new IHR relative to disparate levels of national privacy a public health emergency of international concern protection rather than subject to internationally recog- (Article 6), defined as "an extraordinary event which nized privacy standards. is determined.. .(i) to constitute a public health risk to other States through the international spread of disease National Public Health Capacities: and (ii) to potentially require a coordinated interna- Surveillance and Response tional response" (Article 1.1). A "decision instrument" The new IHR require states parties to develop, is used to guide states parties in determining whether a strengthen, and maintain core surveillance and re- disease event may constitute a public health emergency sponse capacities (Articles 5.1 and 13.1 and Annex of international concern (Annex 2) (See Figure). 1). The old IHR had requirements for public health In keeping with the new IHR's expanded scope, the capabilities only at points of entry and exit. The far- notification obligations reflect a radically different, and reaching provisions in the new IHR shore up major more demanding, approach to addressing the interna- weaknesses in global strategies created by inadequate tional spread of disease. The notification provisions national surveillance and response capabilities. place a premium on states parties having sufficient sur- The new IHR reflect, however, states' concerns about veillance capacities to detect disease incidents, assess sovereignty. States parties do not have to fulfill the ca- them under the decision instrument, and report disease pacity obligations until 2012 - five years after the new events that may constitute public health emergencies IHR enter into force in 2007 (Articles 5.1 and 13.1). A of international concern. As discussed above, whether state party can obtain a two-year extension by submit- many WHO member states have, or can develop, sur- ting a justified need and an implementation plan to veillance capacities sufficient to support these notifica- WHO (Articles 5.2 and 13.2); and, in exceptional cir- tion obligations remains a serious question. cumstances, it can request a further two-year extension Another problem looms for the new IHR's notifica- that the DG has the power to grant or deny (Articles tion requirements. States parties often violated the old 5.2 and 13.2). IHR by failing to report cases of diseases subject to the Although the new IHR's provisions on surveillance Regulations because they feared other countries would and response capacities recognize the critical need for implement economically damaging trade or travel re- capacity building, questions remain about the handling strictions.18 Will the more expansive and demanding of this issue. The most pressing question concerns the notification requirements in the new IHR avoid the availability of financial and technical resources needed wide-spread non-compliance that undermined the old to improve national core capacities, especially in devel- IHR? Answering this question requires considering oping and least developed countries. WHO's duties to the new IHR's approach to information supply and provide surveillance and response assistance (Articles verification, which constitutes its strategy for counter- 5.3, 13.3, and 13.6) do not address its own shortage of ing non-compliance with notification obligations. funds and personnel. The new IHR also contain no obligations on states parties to provide financial and
JOURNAL OF LAW, MEDICINE & ETHICS Fidler and Gostin
Figure Decision Dnstrument for the Assessment and Notification of Events that May Constitute a Public Health (Emergency of nlnternationa Concern (Mew 0OHR, Annex 2)
Events detected by national surveillance system (see Annex I [of the new IHR])
A case of the following diseases is Any event of potential An event involving the following unusual or unexpected and may international public health diseases shall always lead to utiliza- have serious public health impact, concern, including those tion of the algorithm, because they and thus shall be notifieda b: of unknown causes or have demonstrated the ability to * Smallpox OR sources and those in- OR cause serious public health impact 4E * Poliomyletitis due to wild- 30 volving other events or and to spread rapidly internation- type poliovirus diseases than those listed allyb: * Human influenza caused by in the box on the left and * Cholera a new subtype the box on the right shall * Pneumonic plague * Severe acute respiratory lead to utilization of the * Yellow fever syndrome (SARS) algorithm. * Viral haemorrhagic fevers (Ebola, Lassa, Marburg) * West Nile fever * Other diseases that are of Is the public health impact ofthe special national or regional event serious? concern, e.g., dengue fever, Qift V "ll ~.' ,f ,nr o;n- nll men111- gococcal disease.
Is the event unusual Is the event unusual _ or unexpected? or unexpected?
Yes No Yes No
Is there a significant risk of international Isthere a significant risk of international spread? spread?
Yes No
Not notified at this stage. Reassess when more information becomes available.
EVENT SHALL BE NOTIFIED TO WHO UNDER THE INTERNATIONAL HEALTH REGLJLATIONS
a As per WHO case definitions. b The disease list shall be used only for purposes of these Regulations.
DEFINING THE BEGINNING AND THE END OF HUMAN LIFE * SPRING 2006 INDEPENDENT
Data and Verification Provisions: visions privilege global health governance over state Unofficial Sources of Information sovereignty. The old IHR limited WHO to officially using informa- The new IHR contain, however, a provision that tion provided by states parties. This limitation hand- bears watching to see how it affects the flow of non- icapped WHO's ability to respond to disease events governmental information. The Regulations require if a government refused to notify WHO of incidents, WHO to share non-governmental information with supply needed information, or otherwise cooperate. states parties "and only where it is duly justified may By contrast, the new IHR allow WHO to "take into WHO maintain the confidentiality of the source" (Ar- account reports from sources other than notifications ticle 9.1). The general requirement on WHO to disclose or consultations" from or with governments and to the source of non-governmental information might seek verification of such information from states par- deter non-state actors from supplying WHO with in- ties in whose territories the events are allegedly occur- formation, particularly individuals living under au- ring (Articles 9.1 and 10.1). States parties must respond thoritarian regimes. In contrast to its protections for to WHO verification requests (Article 10.2). The new confidentiality of health-related personal information, IHR require WHO to share information it receives the Regulations generally require WHO to supply in- from non-governmental sources with all states parties formation on persons who are non-official sources of and relevant intergovernmental organizations when information. The new IHR provide no guidance for de- necessary to enable responses to public health risks termining under what circumstances WHO would be (Article 11.1). justified in maintaining the confidentiality of non-state From the beginning of the IHR revision process, sources. Such determinations might involve WHO hav- WHO identified access to non-governmental sources ing to assess the likelihood that governments may pun- of information as critical to constructing an effective ish individuals in their jurisdictions for disseminating global surveillance system. 19 Harnessing new infor- disease-related information. Thus, decisions to protect mation technologies, such as the Internet, for global confidentiality of non-state sources will likely involve surveillance has been at the heart of WHO's Global political controversy for WHO. Outbreak Alert and Response Network (GOARN). GOARN - a collaborative network of institutions and Declaration and Recommendation Powers experts that pools human and technical resources for The new IHR grant two other important powers to rapid identification, confirmation, and response to WHO that never appeared in the old IHR. First, the outbreaks of international importance - is centrally new IHR accord WHO the authority to determine 20 important to the new IHR's functioning. whether a disease event constitutes a public emergency WHO demonstrated the power of having access to of international concern (Article 12). States parties non-governmental sources of information during the have to notify disease events that may constitute such SARS outbreak.21 Globalization has significantly de- emergencies, but the DG determines if disease events creased the state's ability to control the flow of epide- are public health emergencies of international concern. miological information into and out of its territory, and Although the DG must consult with states parties in thus its prospects of keeping serious disease events hid- whose territories disease events are occurring, he or den from international scrutiny. The avian influenza she is not bound to follow their views. In other words, outbreaks in Asia also teach this lesson. a state party's refusal to cooperate does not bar WHO WHO's access to non-governmental information, its action. authority to request verification from states parties, Second, if the DG determines that a public health and its power to share such information with the in- emergency of international concern is occurring, then ternational community increase incentives for states he or she shall issue non-binding, temporary recom- parties to comply with the notification requirements. mendations to states parties on the most appropriate Further, the new IHR's information and verification ways to respond (Article 15). The DG may also issue provisions mitigate the consequences of non-compli- non-binding, standing recommendations on routine, ance with notification obligations because WHO will, periodic application of health measures for specific, in all likelihood, learn of disease events through other ongoing public health risks (Article 16). The new IHR sources, triggering the information verification and contain criteria for issuing temporary or standing rec- dissemination processes. The best chance states par- ommendations (Article 17) and examples of the kinds ties have to minimize adverse economic consequences of measures WHO could recommend (Article 18). from disease events is to be transparent and cooper- These powers allow WHO to provide leadership on ate with WHO and other countries in addressing the what health measures are appropriate from scientific threats. In short, the information and verification pro- and public health perspectives and on the proper ways
JOURNAL OF LAW, MEDICINE & ETHICS Fidler and Gostin to balance health protection with respect for human 62). The changes made by, and the more demanding rights and acknowledgement of trade concerns. nature of, the new IHR may create incentives for states to reject the revised Regulations or formulate reserva- Permissible Health Measures: Limits on tions. A reservation becomes effective (1) if less than National Public Health Interventions one-third of relevant states object to the reservation States parties to the new IHR are not legally bound (Article 62.5); or (2) if at least one-third of relevant to follow WHO temporary or standing recommenda- states object to the reservation, and the reserving state tions; but the new IHR contain binding limits on the does not withdraw the reservation, when the WHO types of health measures states parties can take against by majority vote approves the reservation as compat- public health risks. These limits are designed to ensure ible with the IHR's object and purpose (Article 62.9). adequate health protection with minimal interference Rejections and reservations have to be made within 18 with international traffic and respect for human rights. months of the date of the new IHR's adoption (Article Generally, states parties cannot require an invasive 59.1). The United States has already indicated that it medical examination, vaccination or other prophylaxis will submit a "narrowly tailored" reservation providing as a condition of entry for any traveler (Article 31.1); that it will implement the IHR in a manner consistent nor can a state party require any health document for with American federalism. 22 The process of making travelers other than those permitted by the new IHR and reviewing reservations bears monitoring because or recommended by WHO (Article 35). The new IHR of the potential for reservations to weaken the new also regulate measures states parties can apply to ships, IHR's universal application. aircraft, goods, and containers (Articles 25-29, 33-34, and 41) and harmonize the types of health documents Political Controversies in the required from ships and aircraft (Articles 37-39). IHR Reform Process The new IHR permit states parties to apply health Three political conflicts emerged during the negotia- measures that achieve the same or greater level of tions to revise the IHR that threatened to stall or even health protection than WHO recommendations or that prevent final adoption: conflicts of law with other in- are otherwise prohibited by the IHR (Article 43.1). ternational regimes; the role of WHO in combating Such health measures must be based on scientific prin- biological, chemical, and nuclear terrorism; and the ciples, available scientific evidence, relevant guidance relationship of Taiwan to the new IHR regime. or advice from WHO, and cannot be more restrictive of international traffic or more invasive or intrusive Conflicts of InternationalLaw to persons than reasonably available alternatives that WHO member states expressed concerns that the ex- would achieve the level of health protection sought panded scope of the new IHR would bring the Reg- (Articles 43.1-43.2). ulations into conflict with other international agen- These provisions resemble the approach taken to cies and treaties that addressed cross-border health health-protecting measures in WTO agreements, such risks - e.g., the International Atomic Energy Agency as the Agreement on the Application of Sanitary and (nuclear accidents); 23 the World Trade Organization 24 Phytosanitary Measures (SPS Agreement). Unlike the (health measures that restrict international trade); SPS Agreement, however, the new IHR do not have and the Codex Alimentarius Commission (food stan- a strong enforcement mechanism if states parties fail dards and guidelines to protect consumer health and to comply with the obligations on permissible health promote trade in safe products). WHO addressed these measures. Enforcement of the SPS Agreement benefits concerns by demonstrating that few conflicts existed; from the mandatory WTO dispute settlement process. amending the negotiating text to remove the small Dispute settlement in the new IHR is essentially vol- number of possible conflicts;25 and adding provisions untary (Article 56). Failure by states to comply with the to facilitate cooperation and coordination between old IHR undermined their effectiveness. The lack of an WHO and other international organizations (e.g., Ar- enforcement mechanism in the new IHR may mean ticles 14, 17(f), 57.1). that non-compliance with rules on permissible health measures becomes a problem. Biological, Chemical, and Nuclear Terrorism How the revised IHR would apply to suspected in- Rejections and Reservations tentional releases of biological, chemical, and radio- As a treaty, the new IHR cannot legally bind states un- logical agents proved highly controversial. Negotiating less they consent to be bound. Therefore, states can re- drafts required states parties to share information with ject the new IHR (Article 61) or formulate reservations WHO if they had evidence of a suspected intentional to provisions to which they refuse to be bound (Article release of a biological, chemical, or radiological agent.
DEFINING THE BEGINNING AND THE END OF HUMAN LIFE * SPRING 2006 INDEPENDENT
This proposal reflected the belief that appropriate pub- to, public health risks (Article 2). Provision of informa- lic health responses were needed whether the risk was tion under Article 7 is no different than the provision of naturally occurring, accidental, or intentionally caused. information for any disease event or public health risk However, the proposal was politically charged as it to which the new IHR apply, meaning that WHO would touched on issues of national and international security be focused on the health risk only. "Health measure" is related to weapons of mass destruction. Concern was defined to exclude law enforcement or security mea- expressed that WHO's public health mission could be sures (Article 1.1). Although information WHO gath-
Less clear is whether the new IHR might embroil WHO in the politics of national and international security to the detriment of its core public health functions. Although it makes some experts uncomfortable, the potential for terrorism involving weapons of mass destruction connects public health to security concerns. compromised if it had to investigate whether states had ers and analyzes would be important in assessments of violated arms control treaties or UN Security Council whether a state violated obligations under arms control 6 resolutions.2 agreements or Security Council resolutions, the new The new IHR handle these concerns awkwardly, IHR do not put WHO in the position of making such reflecting difficult negotiations. The new IHR do not assessments. contain any specific requirement on information-shar- Despite these attempts to contain WHO's role in situ- ing concerning suspected intentional releases. What ations involving possible violations of arms control and remains is a weaker provision: "If a State Party has evi- other security obligations, the new IHR do not settle dence of an unexpected or unusual public health event the controversies about WHO's relationship to security within its territory, irrespective of origin or source, concerns related to weapons of mass destruction. Fol- which may constitute a public health emergency of in- lowing recommendations made by a high-level panel ternational concern, it shall provide WHO with all rel- of experts28 and the UN Secretary-General,29 the Se- evant public health information" (Article 7). However, curity Council could decide to intervene in a situation this article, combined with the expanded scope, makes involving naturally occurring diseases or a suspected clear that the new IHR apply to a suspected intentional intentional release of biological, chemical, or radiologi- release of a biological, chemical, and radiological agent. cal agents in a way that involves WHO in politically The understanding issued by the United States that difficult circumstances. Whether such an intervention the new IHR apply to all "health threats - chemical, by the Security Council would be warranted is not an biological, and radiological - and all causes and modes issue that the new IHR could address. of events - regardless whether they are naturally occur- 27 ring, accidental, or deliberate" is correct. The Taiwan Problem Less clear is whether the new IHR might embroil The standoff between China and Taiwan entered the WHO in the politics of national and international se- politics of the IHR revision process. Following the curity to the detriment of its core public health func- SARS outbreak in 2003, during which Taiwan required tions. Although it makes some experts uncomfortable, assistance from WHO, Taiwan advocated for being in- the potential for terrorism involving weapons of mass cluded in the new IHR regime. Taiwan argued that the destruction connects public health to security concerns. new IHR should have universal geographical coverage The anthrax attacks in the United States in 2001 dem- to be effective in the era of globalized disease threats. onstrated that public health responses to bioterrorism During the negotiations, China refused to allow Taiwan are critical aspects of national and homeland security. to participate formally in the new IHR. The new IHR recognize this unfortunate reality. What remains of this controversy is found in the prin- At the same time, the new IHR limit WHO's role to ciple that "[t]he implementation of these Regulations public health activities in these security-sensitive con- shall be guided by the goal of their universal application texts. The new IHR's purpose states that the Regula- for the protection of all people of the world from the tions involve prevention, protection, control, and re- international spread of disease" (Article 3.3). Taiwan sponse activities concerning the international spread interprets this provision as "a basis for Taiwan to make of disease in ways commensurate with, and restricted contact with the WHO directly without China's inter-
JOURNAL OF LAW, MEDICINE & ETHICS Fidlerand Gostin ference."30 China disagrees and points to a memoran- pliance with international legal restrictions against the dum it negotiated with WHO in May 2005 that requires implementation of health measures that unnecessarily China's consent before WHO has any direct contact restrict trade or infringe on human rights has not, in the with Taiwan.31 In short, the new IHR do not resolve past, been stellar, as illustrated by how non-compliance the Taiwan-China problem, nor could the IHR revision helped destroy the old IHR's effectiveness. Whether the process be expected to produce rapprochementbetween quantity and quality of compliance with the new IHR's Taiwan and China. rules on health measures are better will not depend on any improved enforcement mechanism because the The New IHR and the Future of Regulations do not create one. Global Health Governance The new IHR are no "magic bullet" for global health The new IHR contain an international legal regime problems. Previous transformations in international unprecedented in the history of the relationship be- law's relationship with public health have, over time, tween international law and public health. The revised atrophied into insignificance. The history of the old Regulations promise to become a centerpiece for global IHR tells just such a story. Further, the new IHR's rel- health governance in the 21st century. As the UN Secre- evance to some pressing global health problems, such tary-General's support for the IHR revision illustrates,32 as increasing access to HIV/AIDS treatment in the de- the new IHR have global governance significance far veloping world or stemming the "brain drain" of health beyond anything contemplated under, or achieved by, workers from developing to developed countries, 33 is the old IHR. Whether the issue involves international not apparent. Controversies and problems surrounding security, trade, economic development, environmental the threat of avian influenza also suggest that the new degradation, UN reform, or human rights, policy mak- IHR do not cut through the tangled knot of very hard ers and experts have identified public health as a central political, economic, scientific, and public health choices governance challenge nationally and internationally in governments must make to address this public health the 21st century. The transformational nature of the emergency of international concern. new IHR create a regime that has the potential to con- The new IHR are the product of a decade of work by tribute significantly to the general global governance WHO and its member states, and the revised Regula- mission of improving national and international health. tions have been designed to be a robust governance The Regulations provide a framework that supports framework far into the future. Harvesting the new IHR's not only improved international cooperation on health benefits for global health requires understanding not but also the strengthening of national health systems, only the difficulties this task faces but also the potential producing more robust health governance horizontally the Regulations represent. At present, this potential ex- among states and vertically within them. ists mainly on paper, which is why the implementation The new IHR's novelty should not, however, obscure phase is critical. WHO needs to approach implementa- hard realities facing its future. WHO was systemati- tion with the energy and vision it demonstrated during cally using non-governmental surveillance information SARS. The seminal achievement of the new IHR con- from GOARN's establishment in 1998, well before the stitutes only the end of the beginning. The hard work IHR revision process was completed; and this strategy of making this transformative revision of global health would have continued whether or not the new IHR had governance effective for individuals, states, and the in- been adopted. More difficult issues arise with produc- ternational community now begins. ing effective responses to identified public health risks. For decades, WHO has issued recommendations on References many public health problems; but the mixed record of 1. World Health Assembly, Revision oftheInternationalHealthRegu- lations, WHA58.3 (May 23, 2005). state compliance with WHO guidance should temper 2. UN Secretary-General, In LargerFreedom: TowardsDevelopment, enthusiasm for the new IHR's recommendation pro- Security, and Human Rights for All: Report of the Secretary-Gen- visions. The political controversies that surrounded eral,A/59/2005 (March 21, 2005). 3. World Health Assembly, Revision and Updating of the Interna- WHO's more aggressive actions during SARS may tionalHealth Regulations,WHA48.7 (May 12, 1995). deter WHO from taking similar actions under the new 4. P. Dorelle, "Old Plagues in the Jet Age: International Aspects of IHR. Laments about the erosion of global and local Present and Future Control of Communicable Diseases," Chronicle of the World Health Organization 23 (1969): 103-111; E. Roels- public health capabilities suggest that WHO's decades- gaard, "Health Regulations and International Travel," Chronicleof long effort to improve health conditions in develop- the World Health Organization28 (1974): 265-268; B. Velimirovic, ing countries has also met with only qualified success. "Do We Still Need International Health Regulations?" Journalof Infectious Diseases 133 (1976): 478-482. The new IHR will not change this dynamic overnight, 5. World Health Organization, ProvisionalDraft of the International particularly when the Regulations generate no fresh Health Regulations(Geneva, Switzerland: World Health Organiza- financial resources to support capacity-building. Coin- tion, January 1998).
DEFINING THE BEGINNING AND THE END OF HUMAN LIFE * SPRING 2006 INDEPENDENT
6. World Health Organization, Severe Acute Respiratory Syndrome 21. D. P. Fidler, SARS, Governance, and the GlobalizationofDisease (SARS): Status of the Outbreak andLessons for the Immediate Fu- (Basingstoke, England: Palgrave Macmillan, 2004). ture (Geneva, Switzerland: World Health Organization, 2003). 22. Statementfor the Record by the Government of the UnitedStates 7. World Health Assembly, Severe Acute Respiratory Syndrome ofAmerica Concerningthe World Health Organization'sRevised (SARS), WHA56.29 (May 28, 2003); World Health Assembly, InternationalHealth Regulations, May 23, 2005. Press Release, Revision of the InternationalHealth Regulations, WHA56.28 U.S. Mission to the United Nations in Geneva, at
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