Written by Pedro A. Villarreal (PhD), Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, villarreal mpil.de

The previous post dealt with general issues of how the interpretation of the IHR’s provisions needs to take place by following their object and purpose. This requires assessing public health measures adopted by states taking their specific context into account. A second question is what happens when states do not base their actions upon the IHR’s obligations. The current blog post elaborates on this scenario .  

From Breach to Responsibility: The Unrelenting Gap

Renowned scholars in the field of international health law recently published a call in the Lancet for countries to “stop violating the IHR”. The starting point is that all measures restricting travel, which are contrary to the WHO´s recommendations in the matter, overstep the confines of Article 43 IHR. As mentioned in the previous post, the latter provision allows states to adopt different health measures that achieve the same or greater levels of protection, provided they are not more restrictive than necessary. The following lines build upon this premise, whilst sketching out existing obstacles in order for these claims to lead to further consequences.

Claims of violation of the IHR’s international norms lead to a theoretical question: Is a breach of international law such regardless of whether there is a decision by an international organization or body declaring it? As seen below, neither the IHR nor even the Constitution of the WHO envisage any consequences for a breach of the obligations of those legal instruments. But it does not mean they do not have any legal value. Even with the caveats related to the effects of WHO´s recommendations, arguments underscoring the existence of a breach in cases of excessive responses may have sufficient grounds. Such an approach is also supported by part of the existing doctrine on state responsibility.

The immediate consequence of a breach of an international law obligation by a state is it's incurring in responsibility for wrongful acts. The regime meant to address these instances is, precisely, the International Law Commission´s Articles on International Responsibility of States for Wrongful Acts (AIRSWA). Article 12 reads as follows: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character”. It can be inferred, then, that the IHR’s provisions fall under this formulation.  

Two conundrums come to mind. First, as argued before elsewhere, if all restrictive measures that go beyond the WHO´s temporary recommendations are automatically breaches of the IHR, are they really non-binding (as Article 1 IHR defines them)? This would seem to run counter to the reasons put forward in the previous blog post. Alternatively, would there be a possibility for states to offer additional scientific evidence justifying diverging measures? A different point, as mentioned in the aforementioned Lancet publication, is related to Article 43.5 IHR, namely the need for states to notify the WHO whenever they go beyond recommendations. This could be seen as a “hard-and-fast” obligation not subject to qualification.

Even if a legal breach has been identified, the WHO´s legal powers, as drawn either from its Constitution or from the IHR itself, do not include the authority to invoke any breach, let alone to attach any consequences thereto. In reports presented at the 72nd World Health Assembly in 2019, states’ measures contrary to the WHO’s recommendations in the middle of the 2018-2019 Ebola outbreak in the Democratic Republic of the Congo were mentioned. But no resolution or decision was taken as a result. In fact, it is doubtful whether the WHO could actually go further–and under which legal basis. In light of the law of international organizations law, an explicit mandate needs to be available for giving it more tools.

The second conundrum is whether breaches of the IHR´s provisions lead to international responsibility for wrongful acts, and how. The outlook is even bleaker at this point. Under Article 2  AIRSWA, violating a norm of international law constitutes an internationally wrongful act, assuming, of course, the act is attributable to a particular state. Cessation and non-repetition are obligatory, and in case the breach leads to damages, there might be a need to provide for reparations. Yet, in order to establish responsibility, there needs to be an invocation by another state beforehand. Moreover, in order to address questions of attribution and causality, a detailed assessment of every individual case would be necessary. The respondent state(s) ought to also have an opportunity to offer their own arguments. In sum, the gap between breach and invocation of responsibility becomes even bigger.

The available judicial recourse would be Article 56 IHR, providing for dispute settlement. For this to occur, it is up to states to come forward and file a notice of arbitration. This also falls in line with AIRSWA. But, in order for this to happen, Article 56(3) requires both state parties at stake to accept arbitration as compulsory. In the case of two major powers having recently imposed the harshest measures during the outbreak, barring a miracle, it seems to be an unfeasible scenario in light of their antecedents in this regard. Moreover, the dispute would be settled at the Permanent Court of Arbitration. Ironically, China itself provided a notable example of non-participation and non-acceptance in this forum in the recent South China Sea Arbitration.  Consequently, the possibilities of redress under dispute settlement in accordance with Article 56 IHR are not very promising.  

The IHR´s Obligations: Revisiting the Toolset

After the dire picture drawn above, what can be done through the IHR? Can legal interpretation itself lead to a more direct relevance during the ongoing COVID-19 crisis? And does the logic of breach and responsibility play any meaningful role in attaching consequences to the IHR’s non-observance?

In a previous blog post, I argued that good faith as a principle of public international law is essential for the effectiveness of legal regimes such as the IHR. Nevertheless, given how they consist of legal obligations for states, discussions on potential breaches should certainly not be overlooked, least of all by legal commentators. The lines herein portrayed the restrained range of possibilities for both the WHO and states to invoke breaches caused by specific measures. In future reviews of the IHR’s implementation, which usually takes place at the yearly World Health Assemblies in Geneva, the limits of the traditional tools of public international law should be taken into account. Their effectiveness in crisis such as the spread of COVID-19 is definitely a matter of global interest.