The Stellenbosch Consensus on Legal National Responses to Public Health Risks

Abstract

The International Health Regulations (ihr), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing covid-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in ensuring the fulfillment of obligations, and fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 43 using the interpretive framework of the Vienna Convention on the Law of Treaties.

Between rules and resistance: moving public health emergency responses beyond fear, racism and greed

“…Indeed, state behaviour during the COVID-19 pandemic (leading up to and including the response to the Omicron variant), as well as in previous public health emergencies of international concern, persistently demonstrate states' widespread disregard of article 43 of the IHR, despite continued guidance from the international community of legal experts, ethicists and officials at the WHO. [30][31][32][33] We envision two different pathways for moving forward: on the one hand, countries may opt for new and reformed legal instruments with strengthened sanctions in the event of non-compliance or consequences for non-compliance. Alternatively (or additionally), any such rules should be approached with a 'realistic' acknowledgement that if we are to make equity, solidarity, and fairness matter in pandemics, we need both better norms and mechanisms for accountability as well as expanded options to enable strategic resistance by LMIC actors when unjust power differentials impede the advancement of their domestic public health interests.…”

“…Consequently, the WHO’s Emergency Committee reiterated their opposition to blanket travel bans on grounds that they are generally ineffective in mitigating public health emergencies and ‘contribute to the economic and social stress experienced by States Parties’ 29. More fundamentally, however, the case of travel bans during Omicron exposed the racist and neocolonial attitudes that lace state responses to an ongoing pandemic, even when beckoned by legal obligation and ethical consideration to do differently 30 31…”

“…Given the global community’s apparent proclivity for running roughshod over international legal agreements, we argue that these initiatives are likely to have little influence if states continue to calibrate their response to public health emergencies through unjust power differentials rather than through cooperation and solidarity. Indeed, state behaviour during the COVID-19 pandemic (leading up to and including the response to the Omicron variant), as well as in previous public health emergencies of international concern, persistently demonstrate states’ widespread disregard of article 43 of the IHR, despite continued guidance from the international community of legal experts, ethicists and officials at the WHO 30–33. We envision two different pathways for moving forward: on the one hand, countries may opt for new and reformed legal instruments with strengthened sanctions in the event of non-compliance or consequences for non-compliance.…”

Monkeypox as a PHEIC: implications for global health governance

“…There is nothing in the IHR to delineate what occurs on PHEIC notification, other than the WHO Director-General having the power to make recommendations to governments—recommendations that are frequently ignored, particularly around trade and travel restrictions. 18 , 19 …”

Travel restrictions and variants of concern: global health laws need to reflect evidence

“…International travel restrictions are not prohibited by the IHR in all circumstances, but any restrictions must be based on scientific principles and WHO guidance. 8 These IHR assessments require evidence to understand where travel restrictions can be necessary and proportionate.…”