The Tightrope of Scientific Inquiry, State Sovereignty and Global Health Governance in Tracing COVID-19 Origins
Newsletter Edition #47 [Treaty Talks - IHR]
The origins of COVID-19 sparks debate and polarization in a way few issues have, even in a field as political as global health.
In today’s edition, my colleague Nishant Sirohi casts a dispassionate look at the legal implications of the origins debate in the context of the current negotiations towards a Pandemic Accord and the amendments to the International Health Regulations. He also links the right to health to the question of state sovereignty.
The key issue of accountability, one of the central tenets in the current negotiations is yet to be addressed seriously in the on-going discussions. As today’s analysis shows, accountability is tied to core capacities, accessing of information and the sharing of benefits, and safeguards in research.
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The Tightrope of Scientific Inquiry, State Sovereignty and Global Health Governance in Tracing COVID-19 Origins
By Nishant Sirohi
Close to four years – when the WHO was first notified of a cluster of unexplained pneumonia cases in Wuhan in December 2019 – the question about the origins of coronavirus remains controversial. Over these pandemic years, millions have lost their lives, billions have been affected, and profound disruption was caused to the world’s social, economic and health fabric.
Understanding the source of COVID-19 is not just a matter of scientific curiosity; it has significant implications for international law, public health policies, and how the world prepares for future pandemics. The complexity of the issue is underlined by the intertwining and complex tapestry of science, geopolitics, and international law that has enveloped the study of the pandemic’s origins.
The Director General of the WHO, Dr Tedros Adhanom Ghebreyesus, recently reignited this discussion. Speaking at a press conference during the United Nations High-Level Meeting in New York, Dr Tedros expressed the possibility of sending a second team to China to study the coronavirus’s origin. Dr Tedros, who has been long urging China to disclose all the information about the origin of COVID-19, stated, “We are pressing China to give full access, and we are asking countries to raise it during their bilateral meetings … [to urge China] to co-operate. …. We have already asked in writing to give us information … and also [are] willing to send a team if they allow us to do so”.
This article evaluates the legal and ethical questions surrounding the discourse on COVID-19’s origins, where matters of scientific inquiry, state sovereignty and global health governance rules intersect.
Why Virus Origins ‘Still’ Matter?
The provenance of COVID-19 continues to be a divisive and elusive subject, yet understanding where the virus emerged from is essential for preventing future pandemics. If COVID-19 has emerged from wildlife, efforts should be focused on monitoring similar markets and controlling wildlife trade. Similarly, if it escaped from a lab, it would necessitate more stringent regulations on “gain of function” research.
However, what began as a scientific question – whether COVID-19 stemmed from a zoonotic spill-over or is an outcome of a lab incident – has evolved into a politically charged debate at the explosive intersection of geopolitics, nationalism and the politicisation of the virus’s origins and science itself.
The joint WHO-China technical report published in March 2021 suggested that the source of the coronavirus is “likely to very likely” a zoonotic spill-over and considered a laboratory incident as “extremely likely”. However, the WHO’s Director General expressed reservation, noting that the report was inconclusive as it lacked adequate access to critical data and that it was premature to rule out the possibility of a laboratory incident. WHO asked China to share “all relevant data in a spirit of transparency” to support the next phase of the scientific process. In October 2021, the WHO established a Scientific Advisory Group for the Origins of Novel Pathogens (SAGO) for a subsequent investigation of the origin of coronavirus, which China declined to support and refused to provide access to crucial data.
As the world approaches the pandemic’s fourth year, the absence of concrete evidence, coupled with limited cooperation from Chinese authorities, has only deepened speculation and distrust, perpetuating geopolitical tensions. Some experts believe that discovering COVID-19’s exact origin might now be out of reach.
For science to work in future and to prepare for future public health emergencies, the pursuit to trace the origin of COVID-19 remains essential. Therefore, it is worth putting efforts into further investigation to collect and assess all available data related to the origins of the coronavirus.
Sovereignty, Global Health Governance and IHR 2005 Challenges
The origin of the coronavirus and its initial transmission to humans remained a highly contentious subject in global health governance. This scientific dispute, which also has considerable political implications, brought the International Health Regulations (IHR) 2005 into focus.
The IHR 2005 is a legally binding treaty on its 196 Member States, including China. The IHR 2005 outlines the rules related to identifying and sharing critical information about public health emergencies and maintaining core capacities to prevent, detect, and respond to severe infectious disease outbreaks. However, rules related to implementation and compliance of the IHR 2005 have proven more difficult to achieve in practice, and the WHO has limited recourse against the non-compliant Member States.
The governance model of the IHR 2005 frames the management of infectious diseases as a joint responsibility between the WHO and its Member States. However, the COVID-19 pandemic exposed its weaknesses.
A significant issue was the WHO’s inability to enforce compliance within the IHR, suggesting that some elements of the regulations, in certain aspects, “failed by design”. Furthermore, while the IHR 2005 emphasises compliance through transparency and openness, the efficacy of this instrument is largely contingent on the willingness of Member States to comply.
These challenges pertaining to the enforcement of IHR 2005 are evident in the ongoing efforts to determine the origin of the coronavirus, where the WHO continues to be largely dependent on China's voluntary cooperation. In contrast, China has limited the access of WHO experts to key outbreak sites and is holding back critical raw data on COVID-19 cases.
Despite its imperfections, the IHR 2005 played a significant role in the detection, surveillance and reporting of the COVID-19 outbreak. However, WHO’s excessive reliance on State-provided data has been insufficient. It is imperative to further revise the IHR to enhance its rules and processes, which strengthen the WHO’s power for verification and data collection in the territory of the affected Member State. Nevertheless, this would revive the age-old tension between global health mandates and the principle of sovereignty.
So far, the resistance by China to allow a comprehensive investigation into its territory by the WHO largely points to the principle of sovereignty. State sovereignty, signifying a nation-state’s exclusive authority to govern itself, is a fundamental principle in the international system. Historically, sovereign States were the only legitimate actors in international politics. However, in recent decades, non-state actors, like non-governmental organisations, private sector entities and global health partnerships such as the Global Fund, GAVI, etc., have gained significance.
These non-state actors complement the sovereign States in the economic dimension of global health governance and influence how global health emergencies are managed. While the IHR respects the absolute sovereignty of the Member States, it paradoxically hindered the WHO’s capacity to directly collect epidemiological data during infectious disease outbreaks – a powerful public health tool.
The 2005 amendment of the IHR marked the WHO’s first attempt to reconcile this fundamental discord related to sovereignty – the conflict between State sovereignty and the need for collective action against a shared threat to global public health. This adjustment aimed to enhance the effectiveness of global health governance institutions, like WHO, in addressing global health challenges.
The 2005 amendment empowered the WHO to use epidemiological/surveillance data from non-state actors and monitoring systems like WHO’s Epidemic Intelligence from Open Sources initiative (Article 9), and it required Member States to maintain core surveillance and response capacities (Articles 5 and 13, and Annex 1). As the 2010 World Health Report framed it, “… global [health] governance entails a diminution of state sovereignty to benefit the world’s population”. However, the enduring question remains: whether a balance can be achieved between state sovereignty and the imperatives of global health governance?
Balancing Sovereignty and Global Health Needs
At the core of the ongoing quest for transparency around COVID-19’s origin, lies the tension between a state’s sovereign right to control the access to its territory, information and genetic sequence data, and the global public health interest in understanding the origins of a virus that has claimed millions of lives. The balance between state sovereignty and collective global health imperatives emerges as a critical, legal and ethical concern. This section delves into the complexities of international instruments, emphasising the need for international solidarity, transparency and collaboration in addressing future health challenges.
Global Health Governance Patchwork
Intricacies arise from the 1992 United Nations Convention on Biological Diversity (Convention on Biological Diversity) and its 2012 Nagoya Protocol on the Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol), which are international environmental agreements but have critical implications for global public health.
While designed to prevent exploitation and ensure equitable benefit-sharing from genetic research, these agreements have less certain definitions that exclude pathogen genetic sequence data. Moreover, Article 15 (1) of the Convention on Biological Diversity and Article 6 (1) of the Nagoya Protocol affirm the State’s sovereignty over its genetic resources. Both these agreements function on principles of informed consent and mutual agreement. However, it appears they can sometimes clash with the WHO’s urgent health objectives, particularly during a public health emergency where quick access to pathogen samples is critical. That is why WHO Member States are currently working to draft new rules on ABS (Access and Benefit Sharing) in the context of global health in a new Pandemic Accord and in the on-going amendments to the IHR.
To bridge this gap – and given that the IHR 2005 mandate primarily concerns only the sharing of public health information – WHO introduced the Pandemic Influenza Preparedness Framework (PIP Framework) in 2011. The PIP Framework, while focusing on influenza viruses with pandemic potential, links the sharing of the pathogen samples to the distribution of essential medical resources. However, its limited scope – addressing only certain influenza strains – and the lack of a broader group of pathogens complicate the global approach to pathogen ABS. There have been calls for expansion of the PIP Framework to include seasonal influenza samples and genetic sequence. Some even suggest that it should cover all other pathogens. Regardless of its limitations, many developing countries and the WHO itself view the PIP Framework as a preferred model for a new ABS mechanism.
As of now, there is no international legal framework that obliges states to share either physical pathogen samples or genetic sequence data during public health emergencies. This legal gap, combined with the principle of sovereignty endorsed by both the Convention on Biological Diversity and the Nagoya Protocol, leaves the sharing of isolated viruses to the discretion of Member States, which becomes a double-edged sword. On the one hand, it allows States to determine how isolated viruses within their territories are shared. Conversely, it creates barriers to collaboration, as there's no established mechanism to enforce cooperation or penalise reticence.
This challenge became evident in the ongoing debate over the origin of COVID-19, where China, pointing out its sovereignty, withheld critical data while there is no established mechanism to enforce cooperation or penalise non-compliance. Nevertheless, it’s notable that Chinese scientists made public the first genetic sequence of SARS-CoV-2 on January 10, 2020. Two days later, China officially shared this information with the WHO on January 12, 2020, just a little over two weeks after the first case cluster was reported on December 31, 2019. The early access to genetic sequence data enabled the development of medical countermeasures such as diagnostic kits, vaccines, and other medical countermeasures.
What also complicates the current information exchange regime, is the lack of obligations on sharing benefits. This is a matter of negotiation in the context of current discussions for a new ABS mechanism at WHO.
A case to give the right to health a jus cogens status?
While international law respects sovereignty, it also recognises the concept of ‘jus cogens’, or compelling law, where certain norms are so important that they override sovereign interests. A prime example of a jus cogens norm is the right to life.
At present, the right to health is not explicitly recognised as a jus cogens norm. However, the right to health is enshrined in various international instruments, reflecting its universal importance. Most notably, Article 12 of the International Covenant on Economic, Social and Cultural Rights recognises the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. Additionally, the right to health is inherent to human dignity and is intrinsically linked to other fundamental rights, including the right to life. Global commitments, such as the Sustainable Development Goal 3 dedicated to health, further underscore the global recognition of health’s importance. Given these considerations, it is arguable that, along with the peremptory right to life, the right to health should also be mandated as an international obligation following the jus cogens principle.
Jus cogens, with its emphasis on the inalienable human right to health, could offer a counter-narrative – one where global health takes precedence, recognising that a threat to health anywhere is a threat everywhere. Nevertheless, establishing international norms is a complex undertaking. Persuading states to relinquish aspects of their sovereignty and ensuring their compliance with these norms has significant challenges.
These challenges are also evident in recognising the right to health as jus cogens norm. Primarily, unlike certain other rights – like the right to life or prohibition against torture, the realisation of the right to health is subject to contingent on progressive measures and availability of resources. Consequently, it lacks the absolute and non-derogable character of jus cogens norms.
However, these challenges do not diminish their importance; they emphasise the need for collective efforts, solidarity and international cooperation. The momentum generated by COVID-19 around global health, bolstered by past lessons and future aspirations, provides a pathway for the right to health to gain prominence and space in international law.
Amendments to the IHR 2005 and the proposed Pandemic Accord
Though the interplay between the principles of state sovereignty, jus cogens and global health law presents a complex legal landscape, it also provides an opportunity for introspection. This introspection is reflected in the commitment of the WHO’s Member States, who have decided to re-evaluate and amend the IHR 2005, drawing from the lessons learned from the challenges posed by the COVID-19 pandemic. Similarly, the resolution to develop a Pandemic Treaty to strengthen WHO’s preparedness and response and ensure equity in future health emergencies demonstrates a collective ambition to refine global health governance.
Amendments to the IHR 2005
The 2005 amendment to the IHR expanded WHO’s authority to collect and act upon information provided by non-state actors. Balancing the respect for State sovereignty with the necessity for disease surveillance, the IHR provided that “States … have the sovereign right to legislate and to implement legislation in pursuance of their health policies. In doing so, they should uphold the purpose of these Regulations”. This significant amendment granted the WHO the capacity to disseminate information about disease outbreaks to address global public health emergencies more effectively. However, despite this progressive shift, the IHR curtailed absolute sovereignty in the face of global health. The rules posed challenges in ensuring transparency around the origin of the COVID-19 pandemic.
Addressing these challenges, the proposed amendments to the IHR focus on bringing transparency, timeliness and a broader scope of collaboration to further strike a balance of power between WHO and its Member States. For instance, the proposed amendments to:
- Article 5 pushes for an enhanced disease surveillance capacity of State Parties within a specified timeline (five years) and also proposes a shift in the current evaluation method from Joint External Evaluations to a Universal Health Periodic Review mechanism for comprehensive and systematic oversight
- Article 7 underscores the urgency of transparency, which is not just for collecting data but also to allow timely intervention, preventing misinformation and ensuring that the global community moves as one cohesive unit
- Article 10 sets a clear 48-hour timeframe for the WHO to request event verification, streamlining the response time and efficiency
- Article 11 highlights the importance of open and efficient information exchange, prioritising swift action over bureaucratic delays to align with global health imperatives
- Article 23 suggests forming expert panels to ensure that decisions are grounded in sound scientific and technical advice
- Articles 24, & 25 propose the creation of committees for Pandemic-Related Products and Benefit-Sharing to offer specialised insights and address niche areas in global health governance
- Article 44 seeks to broaden the very parameters of cooperation
- Article 53A envisions an Implementation Committee, embedding oversight and accountability within the IHR
- Article 54 emphasises adaptability, proposing periodic reviews to ensure that the IHR remains relevant and responsive
These amendments, in essence, are not just about the WHO’s power to investigate disease outbreaks. They represent a fundamental shift in global health governance dynamics – a move towards a more transparent, accountable and collaborative world order. But the success of these amendments will depend on the availability of resources for developing countries who will be asked for broader and tougher obligations on surveillance and prevention measures.
For example, emphasising transparency and cooperation, Malaysia has proposed to add a new paragraph in Article 3 that the “Exchange of information between State Parties or between State Parties and WHO pursuant to the implementation of these Regulations shall be exclusively for peaceful purposes”.
These proposed amendments to the IHR 2005 aim to make a fine balance between sovereignty and collective action. By emphasising robust surveillance, multi-disciplinary teamwork through expert panels and committees, and instituting a dedicated oversight body show a clear intention that these proposed amendments aim to ensure that global health governance rules are translated into tangible actions.
The Pandemic Accord
While the COVID-19 pandemic exposed significant gaps in the global health governance rules, a critical concern arose from the discourse surrounding the origin of COVID-19: an intensified need for biosecurity and biosafety, derived largely from a lack of transparency and constrained scientific cooperation in exchanging critical data pertaining to the coronavirus origin. The bureau’s text from May 2023, as prepared by the Intergovernmental Negotiating Body, addresses biosecurity based on proposals from member states.
Following the WHO’s biosafety guidelines issued in 2020, the draft proposes several provisions to ensure clarity, consistency and robust mechanisms for oversight and accountability to strengthen global health. For example:
- Article 4 (2) underscores the importance of a multisectoral approach, emphasising comprehensive infection prevention
- Article 4 (4) focuses on promoting biosecurity training and practices, transportation measures to prevent accidental and inadvertent releases of pathogens
- Article 5 (7) emphasises to incorporate one-health approach (although there is no WHO-negotiated definition of one-health yet)
- Article 6 (4) recognises the need for strengthening public health laboratory and diagnostic capacities and endorses evidence-based interventions
- Article 9 (4) seeks to promote innovative research, including community-led cross-sector collaboration to harness the full potential of the global scientific community to address emerging and re-emerging pathogens
- Article 12 (5) delicately balances swift access to biological materials that are bound by biosafety and biosecurity rules, harmonising the need for swift international collaboration and safety concerns
- Article 23 (1) proposes to establish an expert body for science-driven decision-making – by monitoring and reviewing genetic research and big data analysis and developing guidelines for research on pandemic potential pathogens.
In conclusion, it’s unclear what shape the Pandemic Accord will take and how the negotiations to amend the IHR will turn out. Nevertheless, the Working Group for the amendment to the IHR 2005 and Pandemic Accord’s Intergovernmental Negotiating Body should strive to address this puzzle: “How can we balance a State’s sovereign rights with a shared commitment to the protection of global health, ensuring that the latter isn't sacrificed at the altar of the former?”
The COVID-19 origin debate underscores the necessity to reconcile State sovereignty with global health imperatives, fostering an environment that champions both State sovereign rights and international cooperation.
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