The power of “soft law” of the World Health Organization: International Health Regulations (2005)

The previous iteration of the IHR was bom as an international health legal document originally adopted by WHO to coordinate international disputes arising from conflicting priorities between managing health issues and protecting trade interests. It replaced various health conventions implemented before 1951. In fact, it was the only binding instrument ratified by the World Health Assembly from 1948 to 2000 with the objective to ensure maximum security against the international spread of disease with minimal interference with world traffic. Despite the progress made by the IHR in global health governance, its failures overshadowed its successes. Drawing on lessons learned, the cunent IHR (2005) amended some of the defects of the original document. For example, it expanded the scope of disease control, incorporated human rights principles, expanded information channels from non-governmental actors, and increased its involvement in the capacity building of domestic health systems in state parties. These added features enable the IHR (2005) to be more responsive in addressing cunent global health issues and in promoting global health governance. However, the IHR (2005) still have shortcomings. They lack a mechanism for mandatory dispute settlement. Certain provisions are inconsistent with other international treaties. The regulations also fail to specify whether WHO has the right to monitor biological weapons. A deep reason contributing to such shortcomings is that member states still adhere to concepts of national sovereignty according to the Westphalian framework and are thereby unwilling to relinquish control of public health affairs considered within their individual sovereignty. That adherence foreshadows limitations of the IHR (2005) to function as the main regime in global health governance.

Background and birth of the IHR (2005)

At the first World Health Assembly in 1948, the newly formed International Committee of Experts on Epidemiology and Quarantine consolidated multiple versions of the International Sanitary Convention (1903) to form the International Sanitary Regulations (1948). The fourth World Health Assembly adopted the Regulations (1948) in 1951 and rolled out preliminary international titles for managing infectious diseases. In 1969, the 22nd World Health Assembly adopted, revised and consolidated the International Sanitary Regulations (1969) and renamed it the International Health Regulations (1969). The 26th World Health Assembly amended the IHR (1973) concerning provisions on cholera. In light of the global eradication of smallpox, the 34th World Health Assembly amended the IHR (1981) to exclude smallpox from the list of notifiable diseases.

However, with the deepening of globalisation and the rise of new global health crises, the IHR (1981) fell out of date for global health governance. Tire call for revision was gaining momentum. Concerns that the regulation was ineffective had existed long before 1995 (Dorelle, 1969; Roelsgaard, 1974; Velimirovic, 1976), including its unduly narrow scope of notifiable diseases (cholera, plague, yellow fever) and acqthescence for breaches and non-compliance by member states. The resurgence of infectious diseases in the 1980s and 1990s made the IHR fall further behind the challenges of the time. WHO also came to the realisation that in an era of accelerated globalisation, a revised IHR must break the mound of traditional approaches and introduce new agents, processes and norms to build a new public health security governance frame. For these reasons, the World Health Assembly recommended the director-general amend the IHR in 1995 (World Health Assembly, 1995). In January 1998, WHO prepared a draft amendment to the IHR, expanding the scope of diseases to be controlled and allowing the use of data fr om non-governmental actors. A new, more innovative framework was beginning to take shape (WHO, 1998a). In 2002, some WHO officials suggested WHO should play a more active role in dispatching working groups to countries reporting outbreaks and helping member states to improve their surveillance capabilities (Grein et al., 2000, pp. 97-102). The anthrax attacks in the United States in 2001 and the SARS crisis in 2003 accelerated the revision process of the new IHR. WHO regarded the response to SARS as a precursor to drafting the IHR (2005). In January 2004, WHO issued a full text of the recommendations as the basis for discussions in the spring and summer of that year. Following regional discussions, WHO issued a fully revised version in September of the same year. After two rounds of intergovernmental consultations, the revised IHR (2005) were adopted by the World Health Assembly in May 2005 and came into effect on June 15, 2007.

 
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