On December 3, GSL Research Fellow Roojin Habibi and GSL Director Steven Hoffman co-published two articles in the International Organizations Law Review (IOLR), in collaboration with 15 leading global health law experts calling for the review and reform of articles 43 and 44 of the International Health Regulations (IHR).
Both papers were outputs from a workshop the Global Strategy Lab organized in South Africa in the Spring of 2019. Out of the workshop grew a new research community titled the Global Health Law Consortium (GHLC) which is administratively hosted at GSL (York University). The two papers are considered the Consortium’s first consensus-based collaboration.
The research deals with articles 43 and 44 of the International Health Regulations (IHR), a set of legally-binding regulations on how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing COVID-19 pandemic. It is important to know that this research was started and largely developed before the outbreak of COVID-19 but has become exponentially more relevant after the events of this year. The authors went back to adapt their findings and conclusions to reflect our new reality
In the first article (Habibi et al.) the authors focused on Article 43 of the IHR. Under Article 43 countries are permitted to exercise their sovereignty in taking additional health measures to respond to public health emergencies. However, these additional measures have to meet certain standards in order to not violate the legally binding IHR. They can’t, for example, violate human rights or other legally binding international legislation. Furthermore, the measures have to be rooted in scientific evidence.
The authors found, however, that during COVID-19 and in other public health emergencies before, countries have taken overbroad measures which led them to understand that the provisions within Article 43 are inadequately understood and that the global community needs to gain a shared understanding of the law at hand and/or revise it to prevent violations in the future.
The second article (Cina et al.; with Steven Hoffman as 2nd author) deals with Article 44 of the IHR. Our reality over the past 10 months has shown that infectious diseases require international cooperation to prevent their spread across borders. This imposes both individual duties on states parties and mutual and shared obligations within the international community. Article 44 of the IHR deals with this obligation to collaborate. In this paper, the authors show that there is a common and shared responsibility among states parties to make it possible for every country to achieve the minimum core public health capacities identified in the IHR.
While Article 44 does not specify how countries must implement their individual obligations, the IHR legally requires countries to determine their level and type of collaboration in good faith. Because of gaps in the legal text found by the authors, they conclude that it is impossible to gauge the level of collaboration for each signatory to the IHR and that further examination and clarification of the article in question is needed.