By Caroline E. Foster
A new pandemic instrument should explicitly embrace the three emerging global regulatory standards of due diligence, due regard, and regulatory coherence.
These standards sit at the interface between national and international law to help functionally align the two in ways that will protect and advance shared and competing interests in an interdependent world.
The standards require nations to exercise their regulatory power in certain ways, including demonstrating (i) due regard for the international legal rights and interests of others, (ii) due diligence in the prevention of harm to other States, and (iii) regulatory coherence between governmental measures and their objectives. These international law standards are already implicit in and given effect by the operation of WHO’s current International Health Regulations (IHR) of 2005.
As we develop new pandemic instruments, their presence should be made increasingly explicit. Giving a stronger profile to the standards will help generate new political impetus and new legal bases for implementation of world health law, and fit it to 21st century application.
A new pandemic instrument should highlight that nations are required, as a matter of general international law, to exercise due diligence in the prevention of transboundary harm. This will significantly reinforce epidemic outbreak control obligations. Too seldom is it acknowledged that the WHO’s IHR presently provide the benchmark for operationalizing this due diligence obligation, as does the Paris Agreement in respect of climate change. Due diligence centrally requires giving effect to core IHR obligations to (a) develop, strengthen, and maintain national surveillance capacity to detect novel outbreaks and public health response capacity, and (b) to notify and continue to communicate on potential public health emergencies as they unfold, including identifying support needs, information-sharing, and consultation. Due diligence should be recognized as lying at the political and legal heart of a new pandemic instrument and its implementation in national law.
Due regard should also feature foundationally in a new pandemic instrument. This emerging global regulatory standard requires that nations have due regard in their regulatory and administrative actions for the rights and interests of other nations and their populations. Such a standard is increasingly understood as an important underpinning of international law on cooperation.
The standard’s application in the multilateral setting is indicated in the World Court judgment on scientific whaling in Whaling in the Antarctic (Australia v Japan: New Zealand intervening). Japan lost this case partly because it had failed as a party to the International Convention for the Regulation of Whaling (ICRW) to give due regard to the recommendations of the International Whaling Commission (IWC) calling for assessment of the feasibility of non-lethal scientific research methods.
Due regard requires nations explicitly to analyze the competing considerations involved in their exercise of regulatory power, including effects on those beyond their voting populace, and including by considering the recommendations of international organizations. Giving the concept of due regard a central place in a new pandemic instrument will provide a strong political and legal footing to hold nations to account should they consider diverging from the views of international organizations with responsibilities in regard to pandemic prevention and management. Espousal of due regard would complement the exercise of any international emergency powers to adopt binding directives that may be created in light of the COVID-19 pandemic.
Global regulatory standards can be expected to work in synergy with one another. Due regard works especially in tandem with the third global regulatory standard, regulatory coherence. The regulatory coherence standard includes requirements that nations’ regulatory measures bear a rational relationship with their objectives, as already seen in administrative law worldwide. Nations must not only commit to specific pandemic preparedness and response aims and targets, they must also design appropriate domestic legal rules and processes to implement them. Regulatory coherence is particularly important, too, in relation to nations’ rights to take public health measures “additional” to those recommended by the WHO. Article 43 of the IHR requires that “additional” trade-inhibiting sanitary measures are not unnecessarily restrictive, based on scientific principles and scientific evidence, as well as WHO guidance, and reviewed as relevant. States must notify the WHO within 48 hours and advise the health rationale. Nations may depart from WHO recommendations and take their own, stricter measures, based on national strategies and risk settings, provided they are scientifically supported and characterized by sufficient regulatory coherence. Much of this is paralleled in the 1995 WTO Agreement on Sanitary and Phytosanitary Measures (the SPS Agreement) and regional trade agreements.
The three global regulatory standards discussed here are inherently pluralistic: national sovereignty remains intact, but is conditioned in new ways that actively consider others’ interests, consistent with human dignity in governance. The global regulatory standards soften and contextualize the suggested need for nations to “share” sovereignty with the World Health Organization. These global regulatory standards are beginning to appear consistently across diverse regulatory spheres, from trade to oceans law. They provide a vital means of reconciling the substance of nations’ competing interests, and will help promote assistance to those in need through capacity-building to reduce compliance problems via early detection, monitoring and advance support. They are premised on science-based action at all global legal levels.
These standards should help provide a starting point for conceptualizing the legal foundations of a potential new WHO convention, agreement, or other international instrument on pandemic preparedness and response in the changing 21st century legal landscape when governments meet at the special session of the World Health Assembly in November 2021 to consider the benefits of developing such an instrument.
The implications for the design of appropriate compliance and accountability mechanisms should also be considered. International law’s increasingly detailed and pervasive governance of nations’ regulatory activity in an interdependent world has implications for the design of mechanisms that can best help achieve the implementation of this law, and of the global regulatory standards by which it is characterized. An emphasis on enabling conduct consistent with nations’ obligations, as seen in the Paris Agreement on climate change, is key.
Caroline E. Foster has a special interest in international legal health and environmental disputes and the precautionary principle. Her work on the COVID-19 pandemic has included high profile academic pieces on border closures and exceptions as well as presentations at the Cambridge International Law Conference 2021 and to the European Society of International Law Health and International Organisations 2021 working group session. Her well known monograph with Cambridge University Press in 2011 on Science and the Precautionary Principle has been relied on by judges in the International Court of Justice; her new 2021 monograph with Oxford University Press Global Regulatory Standards in Environmental and Health Disputes addresses the global regulatory standards featuring in this symposium contribution.