By Aeyal Gross
But, if this focus on “emergencies” comes at the expense of chronic and underlying issues, including the overall status of health systems, we risk replicating, with this legal instrument, the colonial legacy of international health supposedly left behind with the shift to “global health.” This points to the urgent need to rethink what is considered a “crisis” or an “emergency,” as part of the effort to “decolonize global health,” including global health law (GHL).
The so-called “international health” approach to infectious disease began to take shape in the mid-nineteenth century, as David Fidler shows. The driving motivation behind this approach was to protect Europe and North America from “Asiatic diseases” spreading from Asia and the Middle East. This regime was streamlined and universalized with the establishment of the WHO and its 1951 international sanitary regulations (renamed as International Health Regulations [IHR] in 1969) that replaced the previous treaties and led eventually to the 2005 IHR.
Eventually this regime faltered, as developed countries made significant strides in reducing the threat of infectious disease to their populations and economies following the availability of clean water, sanitation services, and new medical technologies, such as vaccines. The concern in developed countries shifted to non-communicable diseases.
In the 1980s, however, developed countries once again became concerned with infectious disease, in light of emerging infectious diseases (EID) such as HIV/AIDS, and later SARS and COVID-19, and re-emerging old ones (e.g., tuberculosis and malaria). A new international legal regime suited to these developments was needed, and “global health governance” emerged as the favored strategy. The 2005 IHR revision process embodied the new strategy of global health security and the new approach of global health governance.
This approach is supposed to be “global” and different from obsolete, colonial “international health.” It purports to understand the global nature of disease, rather than center on transmission solely in one direction. But, in practice, it seems to replicate much of the state-focused, colonially-tainted international health scheme. As the COVID-19 pandemic has shown, global health governance often favored unilateralism, nationalism, and populist self-interest over global solidarity. Vaccine nationalism, vaccine hoarding, and vaccine diplomacy, together with other nationalist and populist reactions to COVID-19, can attest to this.
Sekalala and Harrington point to the speedy nature of security-led responses, which are subject to what they call the “tyranny of the urgent” implying, inter alia, the prioritization of rapidly spreading diseases like COVID-19 over endemic conditions like malaria, which impose a much greater burden on the population’s health but are less likely to travel. These approaches end up favoring the nations of the global north, reproducing domination patterns typical of European colonialism.
The risks of the “tyranny of the urgent” became apparent during the COVID-19 pandemic when concerns were raised about the potentially disruptive effects of COVID-19 control measures on efforts to combat AIDS, malaria, and tuberculosis. Research shows, for example, that the provision of TB health services (diagnosis, care, and prevention) was severely disrupted by COVID-19 mitigation measures, partly due to restrictions on freedom of movement and the re-allocation of resources, and, more generally, that COVID-19 has caused significant setbacks in the fights against HIV, TB, and malaria. Additionally, funding for non-communicable diseases (NCDs) as a share of foreign aid declined during COVID-19.
Whose security, then, is included in the “Global Health Security” paradigm? The COVID-19 pandemic has illustrated how “Global Health Security” is triggered when new diseases reach, or threaten to reach, the global north. These new threats are viewed as “urgent,” unlike endemic diseases, such as TB or malaria, which nevertheless critically threaten the global south.
The current focus on duties surrounding new and emerging pandemics draws attention, resources, and efforts to diseases like COVID-19, which are declared part of the “Public Health Emergency of International Concern” (PHEIC) paradigm under the IHR.
Meanwhile, although diseases like TB, malaria, and AIDS each kill hundreds of thousands in Africa every year, they are not “new,” do not travel easily, and are not defined as PHEIC in the IHR, meaning they do not constitute “extraordinary events” posing a public health risk to other countries through their international spread (PHEIC definition, IHR Article 1). NCDs are addressed almost exclusively through non-binding global action plans, strategies, and recommendations. Although some have described the rise of NCDs as a pandemic or crisis, within GHL they are not viewed as “emergencies.”
In other words, when infectious diseases endemic to the global south are at stake, there are no specific norms and duties in international law other than general obligations that can be derived from the right to health, though soft law does play a significant role in dealing with diseases that are not part of the PHEIC paradigm.
The focus on “health emergencies” in the IHR seemingly makes GHL a “discipline of crisis,” to borrow the term used by Hilary Charlesworth to describe international law in general. COVID-19 has often been described as a crisis and, as Charlesworth shows, the obsession of international law with crises leads us to concentrate on single events or series of events, often missing the larger picture. This promotes a narrow agenda for international law, and creates silence on issues outside the lens of crises. Charlesworth suggests instead that international law should refocus on the structural justice issues underpinning everyday life, a significant lesson for GHL given the concentration on crisis — and especially on events defined as PHEIC under the IHR, such as COVID-19 — in a way that raises the question not only of the focus on “crisis,” but also on the biases affecting the decision as to what is a crisis, especially given the paucity of norms within GHL touching on endemic and non-communicable diseases.
While the content of a prospective pandemic treaty is still to be determined, it is expected to “clarify state obligations to prevent, detect, and respond to pandemic threats and strengthen WHO powers” to address novel outbreaks with pandemic potential. The suggestions to focus on prevention and adopt a “One Health” approach within a pandemic treaty, and to include principles of equity and human rights are welcome.
However, the focus on novel outbreaks and PHEIC-like situations within a pandemic treaty ignores the need for expanded concern with background issues, NCDs, and endemic diseases, and remains within the restricted and biased “crisis” framework. The proposed pandemic treaty may replicate this bias, unless it includes a complete paradigm shift of what is considered a pandemic of international concern.
Aeyal Gross is Professor of International and Constitutional Law at Tel-Aviv University’s Faculty of Law. He is also Visiting Professor of Law at SOAS, University of London.