The global pandemic response has legally largely relied on the International Health Regulations of 2005, but this instrument does not offer a clear framework for the provision of international assistance in pandemics. The regime of international disaster response law offers a solution and should fill this gap. The concurrent application of both regimes contributes to a comprehensive global approach to the complex challenges of pandemics.
Since the beginning of the pandemic, dramatic surges in COVID-19 cases have caused crises around the world. Rising pressure on health care systems and shortages of medical supplies have put several states in urgent need of assistance at various stages during the pandemic. A striking example is India, where an exponential rise of cases led to heartbreaking scenes in April and May 2021. States have responded to these needs with offers of international assistance, including assistance to India. However, it has been unclear which legal framework applies to international assistance in a pandemic.
The International Health Regulations of 2005 (IHR 2005) have been the main framework for the global response to the COVID-19 pandemic. Earlier this year, two independent panels that reviewed the global pandemic response have highlighted the lack of attention drawn to international cooperation and mutual assistance in the IHR 2005. The panels have recommended revision of the IHR 2005 and even a new ‘pandemic treaty’, but did not come up with detailed proposals that address international assistance in pandemics. However, rather than reinventing the wheel, we should look beyond the IHR 2005 and rely on the rules and principles of international law that already address international assistance in crises, namely international disaster response law. This regime should be integrated into the legal framework on the global pandemic response.
International assistance in the International Health Regulations of 2005
The basis for the global COVID-19 pandemic response has been the IHR 2005, on which much has already been written, including on this blog. The IHR 2005 are a binding instrument, designed to be ‘the key global instrument for protection against the international spread of disease’. The IHR 2005 require states to implement minimal core capacities to detect, report and respond to public health threats, including outbreaks of contagious disease, and grants the World Health Organization the power to make temporary non-binding recommendations during a Public Health Emergency of International Concern (Articles 15-18). Yet, the IHR 2005 set minimal expectations for international cooperation in the response to public health threats, such as pandemics. Article 44 compels states to collaborate ‘to the extent possible’, but does not offer any details beyond this general duty. This silence does not match the real-world challenges that come with global pandemics. Leaving aside issues like the distribution of vaccines, the COVID-19 pandemic has shown that international assistance is crucial to provide relief to persons in urgent need. Yet, the IHR 2005 do not provide an appropriate framework to regulate this international assistance in pandemics. This presents an opportunity to explore other applicable regimes of international law. One, in particular, offers a suitable framework: international disaster response law.
International disaster response law
International disaster response law (IDRL) is an emerging regime of international law that aims to regulate international cooperation in the response to disasters to reduce human vulnerability. IDRL is still underdeveloped in terms of applicable rules and principles and in terms of binding international law instruments. The regime lacks a universal ‘flagship’ treaty and instead relies largely on non-binding instruments, such as the International Law Commission’s Draft Articles on the Protection of Persons in the Event of Disasters (Draft Articles).
The application of IDRL is restricted to disasters. While there is no universally accepted legal definition of a ‘disaster’, the Draft Articles define it as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’ (Article 3(a)). Notably, the definition disregards the causes of a disaster and focuses solely on the effects of a disastrous event instead. Neither the Draft Articles nor the accompanying commentaries address the specific inclusion of pandemics in this definition, but considering the broad scope of the definition and the declaration of COVID-19 as a pandemic with an undeniably consequential impact globally, it is likely that the pandemic qualifies as a disaster.
IDRL is a specialist and practice-oriented regime that addresses different aspects of international disaster response. Importantly, the basic principle is that the affected state is in charge of the response to a disaster. Though, when the disaster overwhelms the national response capacity, the affected state has an obligation to request and accept international assistance. Other states have a duty to cooperate to ensure that this assistance reaches those in need. Furthermore, IDRL offers a framework for the facilitation of international assistance directed at operational aspects such as visa and entry requirements, quality assurance, taxation and customs clearance. Practice shows that these are often matters of concern and frequently disrupt relief activities, like in the case of India, where supplies remained stuck at airports for days pending clearance by local authorities.
Concurrent application of regimes
Despite the likely applicability of IDRL to pandemics, the regime did not seem to play a role in the global response to the COVID-19 pandemic. This is remarkable considering that the IHR 2005 do not provide a framework for international assistance in urgent situations. In its current state, the IHR 2005 do not obligate states to request or accept international assistance, even when the national capacities are overwhelmed, or to justify a refusal to accept assistance. Neither do the IHR 2005 provide a framework for the facilitation of such assistance, particularly in the context of pandemic-related travel restrictions and strict quality standards for medical supplies. IDRL does, on the other hand, address these matters and should fill this gap.
It is unclear whether IDRL could apply as lex specialis. On the one hand, IDRL offers more detailed rules and principles on matters of international assistance than the IHR 2005. On the other hand, the IHR 2005 are clearly designed to function as the specialist regime in the global response to pandemics (and other global health threats). However, this question is moot. One regime does not need to apply over the other, because the regimes do not conflict. In fact, considering that the IHR 2005 call for international collaboration and that IDRL offers a detailed framework for international cooperation, it appears that the regimes mutually reinforce one another. This calls for the concurrent application of both the IHR 2005 and IDRL so that they can complement each other and feed into a comprehensive approach to the complex challenges of pandemics. Practically, this means that one can rely on the rules and principles of IDRL on the request and acceptance of international assistance and on its framework for the facilitation of such assistance in the context of pandemics.
This concurrent application is already possible. Article 57(1) of the IHR 2005 recognises that the regime and other international law agreements should be interpreted ‘so as to be compatible’. The concurrent application is further supported by the Vienna Convention on the Law of Treaties, which provides in article 31(3)(c) that treaties should be interpreted in the context of ‘any relevant rules of international law applicable in the relations between the parties’. This calls for a harmonious interpretation and application of both regimes to the extent possible. However, this does not mean that IDRL should replace the IHR 2005. The latter remains the specialist regime in the global pandemic response but should be complemented by IDRL where appropriate.
The concurrent application of the IHR 2005 and IDRL has four positive effects. First, it strengthens a comprehensive global pandemic response with attention for international assistance to protect those in urgent need. Concurrent application promotes international cooperation in pandemics in a structured manner and offers a framework for constructive mutual assistance. Second, the concurrent application avoids long and painstaking negotiations on necessary revisions of the IHR 2005 to address international assistance. By leveraging on already existing rules and principles of international law, political capital can be reserved for other pressing matters, such as equitable vaccine distribution. Third, concurrent application furthers the integration of international law. Rather than addressing complex global challenges from siloed regimes, concurrent application encourages an integrated legal approach to address complex issues of global pandemic response. Finally, concurrent application advances the development of IDRL. It is a chance to expand and refine the rules and principles of IDRL, position IDRL in international law and address its interaction with other regimes.
Future pandemic response
As we slowly emerge from the COVID-19 pandemic, now is the right moment to plan and prepare for a future pandemic. Now is the time to reconsider the legal framework for the global pandemic response and when we do, we should be mindful of the role that IDRL has to play in it. We should not reinvent the wheel but learn from IDRL. This means that future reforms of the IHR 2005 should either draw from or incorporate IDRL to address international assistance in pandemics or expressly open the door for concurrent application. This should not be any different for other future projects, such as the proposed ‘pandemic treaty’. Preparing for the next pandemic also means planning for international cooperation and mutual assistance.
Thomas Mulder is a PhD candidate at UNSW Sydney and specialises in international disaster law.