CLOSING THE COMPLIANCE GAP: FROM SOFT TO HARD MONITORING MECHANISMS UNDER THE INTERNATIONAL HEALTH REGULATIONS.

• Author: Berman, Dr. Ayelet

1. INTRODUCTION

   The world has been caught unprepared for COVID-19. Many countries, including highly developed countries such as the U.S. and the U.K., scrambled to craft a response to the pandemic. The consequences of their unprcparedness have been and continue to be catastrophic, with millions dying and economies being crushed. This would not have been the case, or would not have been as extreme, had countries invested in the core public health capacities needed to prevent pandemics - in other words, had countries rigorously complied with their obligations under the International Health Regulations (IHR).

   Under the IHR, Member States are under an obligation to develop and maintain core health capacities for effective responses to disease outbreaks. Core capacities are the capacities needed to prevent, detect, assess, notify, report, and respond to public health risks and emergencies. This includes having in place, for example, surveillance systems, reporting systems, and laboratory services. (1)

   The COVID-19 pandemic is not the first time that governments' unprcparedness for disease outbreaks has been exposed. Following the 2014 Ebola virus outbreak in West Africa, it became clear that many of the failures leading to the spread of the fatal disease had been caused not by gaps in the IHR themselves but by a lack of IHR implementation. (2) One of the main recommendations coming out of the Ebola experience was, therefore , that full IHR implementation in all Member States was an urgent task that should be given the highest priority. (3)

   To this end, there have been sustained calls by health and policy experts to improve compliance through the installation of monitoring mechanisms with compulsory external oversight that are more stringent than the weak mechanisms that the World Health Organization (WHO) currently has in place. (4) Current monitoring mechanisms rely on self-assessment by Member States (rather than external oversight) and are voluntary in nature. (5)

   Yet despite these calls for better monitoring, the immense gap between the critical nature of core capacity obligations and the institutional mechanisms in place to monitor their implementation persists. This gap persists because although stringent monitoring mechanisms would potentially bring benefits to global health security, WHO Member States tend to be concerned about interference in their domestic affairs and have, as of yet, resisted more intrusive monitoring mechanisms. (6) As a result, despite the preventable tragedies caused by disease outbreaks, many WHO Member States continue to fall short on core capacity implementation. COVID-19, it is hoped, has created the momentum needed for states to agree on stronger accountability measures which would contribute to closing the gap between core capacity obligations and their implementation.

   Against this background, the purpose of this short Essay is to examine the role of monitoring mechanisms in improving IHR core capacity implementation. While acknowledging that improving compliance is a complex task requiring a holistic and multifaceted response - such as significant financial and technical support and systemic capacity building in developing countries- the focus in this Essay is on the singular topic of monitoring mechanisms. The Essay seeks to draw lessons from other, more stringent monitoring mechanisms found in other international organizations . It should be noted that dispute settlement mechanisms for settling disputes between Member States are also accountability mechanisms that may incentivize compliance but are beyond the scope of this Essay.

   Below, this Essay lays out the core capacity obligations (section 2) and the current WHO monitoring mechanisms (section 3). It then assesses the current mechanisms against a typology of monitoring mechanisms found in international governance (section 4) and suggests possible avenues for strengthening IHR monitoring mechanisms in the future (section 5). Section 6 concludes.

2. WHO MEMBER STATES' OBLIGATION TO DEVELOP AND MAINTAIN CORE HEALTH CAPACITIES

   Under Articles 5 and 13, the IHR mandates that WHO Member States develop, strengthen, and maintain minimum core public health capacities. States must develop, strengthen, and maintain the capacity to detect, assess, notify, and report public health risks (7) and to respond promptly and effectively when such risks occur. (8) The minimum core capacity requirements are spelled out in the IHR Annex and include surveillance, rapid response, risk communication, human resources, laboratory services, logistical and communication capacities, the maintenance of a national public health emergency response plan, and more. (9) Member States had five years to meet these requirements (2007-2012), and the WHO then provided two extension periods. (10) These extension periods expired in 2016 - nine years after the entry into force of the IHR in 2007.

   Despite the legally binding nature of the IHR 2005 and despite having many years to implement core capacities, compliance with these requirements remains low, especially in developing countries," but - as showcased with COVID-19 - in developed countries as well. COVID-19 has now clearly revealed the tragic consequences of this deficit, but the unfortunate truth is that public health experts have long been warning about the high level of unpreparedness across the globe. (12) IHR implementation reviews undertaken in recent years have concluded that only thirty percent of states had reasonably implemented core capacities. (13) Recently, a group of leading global health scholars warned that "following more than a decade under the revised IHR, only a third of countries meet the core capacities of public health systems required therein, impacting countries' abilities to prevent, detect, and respond to disease outbreaks and putting the whole world at risk." (14)

3. CURRENT MONITORING MECHANISMS UNDER THE IHR

   In general, monitoring mechanisms are mechanisms or procedures created under a respective treaty for an international organization or other international body to monitor the compliance of the treaty's parties with their obligations under the treaty.

   Monitoring mechanisms arc commonly perceived as carrot-and-stick mechanisms: On the one hand, through transparency, accountability and oversight, noncomplying states suffer reputational or other sanctions; on the other hand, by identifying the obstacles that undermine compliance, such mechanisms provide expertise or technical support to Member States to address identified problems.

   Not all monitoring mechanisms in international governance are made equal. As 1 elaborate below (Section 4), monitoring mechanisms range between stringent mechanisms with external inspection powers to weaker mechanisms, which rely on State self-assessment. As I describe next, the monitoring mechanisms under the IHR have undergone some strengthening since the adoption of the IHR in 2005. (15) The mechanisms have, nevertheless, largely retained their soft and weak nature by relying on self assessment and voluntary review.

   1. Self-Assessment Reporting

      In accordance with Article 54 of the IHR 2005 on "Reporting and Review" and WHA Resolution A61.2, Implementation of the International Health Regulations, States Parties and the WHO are required to report to the World Health Assembly (WHA) on the progress they have made in implementing the IHR. (16) In the first few years after the 2005 IHR revision, the WHO Secretariat sent an annual questionnaire to Member States. Then, in 2010, the WHO adopted the IHR Core Capacity Monitoring Framework, which identified twenty indicators' (7) to be included in the annual questionnaire. (18) States were required to self-assess and score their capacities in thirteen topics, including laboratories, human resources, surveillance, and risk communication. (19)

      In recent years, most notably after the end of the implementation of grace periods granted to Member States and following the Ebola outbreak, the necessity of implementing core capacities has, as mentioned in the introduction, received more attention. A series of reviews carried out within the UN system (20) and by independent experts (21) have all highlighted the need to improve core capacity implementation and, in turn, monitoring. Notably, many have criticized the monitoring system based on self-evaluation as being inherently self-interested and unreliable, which undermines the integrity and utility of the self-assessment. (22)

      The 2015 IHR Review Committee on Second Extensions for Establishing National Public Health Capacities on IHR Implementation thus recommended that the WHO move away from self-evaluation to a variety of other approaches for improving implementation, combining self evaluation, peer review, and voluntary external evaluations involving domestic and independent experts. (23) This approach was also supported by the 2016 Review Committee on the Role of International Health Regulations (2005) in the Ebola Outbreak and Response, which determined that inadequate core capacities had contributed to the outbreak and that IHR implementation was a matter of priority. The 2016 committee recommended promoting the external assessment of core capacities. It found that "self assessment has significant weaknesses" and that external evaluations will reveal "shortfalls in core capacities not identified or recognized [in]... self assessment." (24)

      The WHO, consequently, adopted the IHR Monitoring and Evaluation Framework, which introduced some new monitoring components. (25) First, it continues the mandatory annual self-reporting to the World Health Assembly (above). Reporting is now based on the 2018 State Parties Self-Assessment Annual Reporting (SPAR) tool, a quantitative questionnaire through which Member States self-assess and score their progress towards implementing core capacities. (26) Second, it adds three voluntary components: after-action review...