(Non) Compliance with the International Health Regulations of the WHO from the Perspective of the Law of International Responsibility

Abstract

International Health Regulations (IHR) of the World Health Organization (WHO) are fundamental to ensure an adequate response of the international community to health emergencies such as the spread of the virus Ebola in 2014. This notwithstanding, WHO's Member States appear reluctant to comply with the IHR and in particular they violate the ban on unnecessary trade and travel restrictions. After having presented the lack of compliance with the IHR, the present article analyses the means at the disposal of the WHO for sanctioning the behaviour of its Member States, both from the perspective of WHO's internal rules and from the perspective of the law of international responsibility, evaluating if countermeasures might represent a viable solution. The conclusions will offer a broad reflection on the codification process of the rules on the responsibility of international organisations concluded by the International Law Commission in 2011.

The Failure of ‘Core Capacities’ Under the Who International Health Regulations

“…111 So far, none of the procedures provided for by Article 56 has been formally invoked, making it hard to see how it helps guarantee compliance with core capacities, a problem magnified by the non-confrontational and 'managerial' 112 approach of the WHO to its relationship with States concerning the IHR. This is further compounded by 'the (non) existence of a statutory sanctioning mechanism in WHO's rules' 113 in case of violations of the IHR, echoing the report of the Review Committee in relation to the H1N1 Pandemic where 'the lack of enforceable sanctions' was qualified as 'the most important structural shortcoming of the IHR'. 114 As a result, recourse to mechanisms provided by instruments external to the IHR should be explored to incentivise compliance with obligations related to the core capacities.…”