PANDEMIC NATIONALISM, COVID-19, AND INTERNATIONAL LAW.

AuthorSadat, Leila Nadya
  1. INTRODUCTION

    In late 2019, a mysterious illness emerged in China. (1) On December 31, 2019, the WHO China country office was informed of pneumonia cases of unknown etiology detected in Wuhan city. (2) As it turns out, the virus probably appeared earlier, (3) and during the months of December and January, Chinese leaders were made aware that a new coronavirus was causing the outbreak and were reluctant to allow the information to become public. (4) Early investigation attributed it to a "novel" coronavirus that had probably spread from bats to other animals and then to humans. Although initial reports suggested that the virus was not transmitted by humans, (5) this was incorrect. The novel coronavirus was wildly contagious and by mid-January, the first case outside China was confirmed. (6)

    As of this writing, 107.8 million cases have been reported worldwide resulting in 2.37 million deaths. (7) The United States leads the world in confirmed cases (27,122,583) and deaths (471,635) with India, Brazil, the Russian Federation, and much of Western Europe and the Americas also suffering very high infection rates. (8) China, where the virus originated, has confirmed 101,496 cases, with 4,837 deaths. (9)

    The appearance of the virus and the havoc it has wreaked on human health and the global economy have been devastating. Global GDP has dropped more than four percent, (10) and if we graded the international community on its response to the virus, it would receive poor marks. Instead of transparency and cooperation, nationalism, secrecy, and recrimination have characterized the response of many governments to the pandemic, with predictably devastating results." It is now evident that China was not entirely forthcoming with the WHO and the international community at the outset of the outbreak. In addition, the WHO may not have been quick enough to respond to information of the outbreak and declare a public health emergency of international concern (a "PHEIC") under the International Health Regulations (2005) (1HR), (12) as it stopped short of declaring a PHEIC even after China had effectively quarantined nearly twenty million people across Wuhan and other cities and announced measures to curb the spread of disease nationwide. (13) Moreover, even when the WHO declared a PHEIC on January 30, 2020, (14) the measures recommended were arguably insufficiently robust to contain the spread of the disease. (15)

    The combination of Chinese secrecy and possible missteps by the WHO caused the outbreak to spread. When it reached the United States, it encountered a nationalistic government already repudiating international law and international institutions that subsequently politicized the pandemic for political advantage."' The U.S. government, like its Chinese counterpart, also kept knowledge of the virus's potential lethality secret for several weeks, although it had been receiving regular intelligence briefings about the virus starting in early January. (17) The Trump administration declared a public health emergency in the United States on January 31, simultaneously blocking most travel from China. Inexplicably, however, the administration continued to downplay the virus, even after it had taken the lives of more than one hundred thousand individuals in the United States. (18) Some countries were able to successfully contain the virus due to a happy coincidence of effective leadership, science-based public policy, adequate resources, and even fortunate geography - New Zealand and Singapore serving as prime examples. (19) Overall, however, a toxic brew of secrecy, timidity, and nationalism allowed the virus to multiply to the despair of scientists, doctors, and other actors seeking to contain it and enhance global cooperation to combat its devastating effects.

    In August 2020, as Director of the Harris Institute at Washington University School of Law, I launched a project to examine the global governance issues surrounding the pandemic. Although the IHR 2005 and the declaration of a PHEIC were important improvements in the global architecture developed to provide a "global surveillance tool for cross border transmission of diseases," (20) they have proven insufficient in the case of COVID-19 to effectively counter the spread of the disease. The project brought together scholars from Washington University School of Law, the National University of Singapore, Florida State University College of Law, the University of Melbourne Law School, and the Max Planck Institute for Comparative Public Law and International Law, as well as a team of medical experts from the Washington University School of Medicine. Meetings were held over Zoom in late summer and fall 2020, and drafts were exchanged later in the year. Participants also had the opportunity to refer to the work of the International Law Association's Global Health Committee which has been very active regarding the current pandemic, (21) as well as to the ongoing work of the Independent Panel for Pandemic Preparedness and Response for the WHO Executive Board (the "Independent Panel"). (22) The goal was to use the experience with COVID-19 to examine the effectiveness of the IHR and the WHO, propose possible reforms, and suggest additional ways to enhance global cooperation in the face of the COVID-19 pandemic as well as future global health emergencies.

    Each scholar in the project has contributed a short essay addressing various elements of the problem or has served as part of the collective to frame the problems addressed by the various essays. In this essay I briefly discuss three issues: (1) how nationalism in international affairs makes cooperation difficult, focusing particularly on the example of the U.S. and Chinese responses to the coronavirus crisis, (23) (2) ways that legal and practice reforms might strengthen and fortify the current architecture of the WHO so as to respond more quickly and effectively to contain global health emergencies; (24) and (3) how existing provisions of the WHO Constitution and the IHR 2005 can be enforced considering principles of State responsibility for internationally wrongful acts and the dispute resolution clauses in these instruments, in particular Article 75 of the WHO Constitution and Article 56 of the IHR 2005. This section will not address, except tangentially, the potential responsibility of international organizations like the WHO, issues surrounding the possible liability of governments to their own people because of missteps allegedly taken, (25) nor possible claims of human rights abuses violating other international treaty and customary international law norms. (26) While important, these issues were not within the framing of this particular project.

    I hope that this essay and this Symposium will inform the global conversation taking place on these issues, as well as the WHO reform process that was sparked by criticisms of the organization regarding its response to COVID-19. (27)

  2. THE PROBLEM OF PANDEMIC NATIONALISM:

    Addressing a global pandemic is difficult even if one assumes States are inherently inclined to cooperate and coordinate their responses, consistent with international law and scientific considerations informing public health responses. If States are unwilling to cooperate or coordinate, however, it becomes unlikely the pandemic will be contained quickly or that therapeutics and vaccines will be distributed equitably and effectively. The COVID-19 pandemic presents a "weakest-link public goods" kind of game in which the outcome for all will be determined by the weakest member of the group. As a recent paper notes, the optimal solution to the problem of infection and viral spread requires "all citizens to choose actions that go well beyond their pure self-interest (i.e., to cooperate) and many choose voluntarily to engage in such behavior. However, the free riding (i.e., defection) of some may have devastating effects for the community," by frustrating efforts to contain the virus. (28) The architecture of the WHO and the IHR 2005 is built upon the premise that States, like citizens within States, will cooperate in the case of a public health emergency. If one country refuses to cooperate and take appropriate precautions to control outbreaks, it becomes difficult to contain the spread of disease. (29)

    Under its Constitution, the WHO, representing its 194 Member States, acts as "the directing and co-ordinating authority on international health work." (10) During a global health crisis, the organization monitors and supplies information on the disease and its spread, helps countries to prepare their health systems to identify, track, prevent, and treat the disease, and plays a key role in the search for a treatment or vaccine. It works in collaboration with its Member States, and has little autonomous authority of its own, relying upon national governments for funding, access, and implementation. The IHR 2005 require States to cooperate with the WHO and with each other by tracking health events on their territories, notifying the WHO if they reach a certain threshold of seriousness (based upon the risk of international spread, rather than on actual severity of the illness caused), (31) providing detailed information to each other and to the WHO, and implementing a range of responses, including achieving a core set of public health capacities.

    If one takes as an example the U.S. and Chinese responses to the pandemic, not only did both countries arguably fail to comply with the IHR 2005 by concealing information on the virus's morbidity, (32) but the war of words and mutual recrimination that ensued created a very difficult geopolitical environment for the WHO. Beginning in April 2020, President Trump threatened to halt WHO funding, and on May 29, 2020, made good on his threat, announcing that the United States would halt its funding of the WHO and withdraw from the organization. (33) President Trump accused...

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