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Prior to COVID-19, pandemic preparedness and response fell under the rubric of “global health security,” which—because of controversies attached to this concept—was defined to include a narrower “security lens” and a broader “global public good lens.” A variety of actors, including states, international institutions, and nongovernmental organizations (especially private foundations), contributed to the development of what the academic literature refers to as a “regime complex”28 for global health security. This complex encompassed both binding agreements (such as the Biological Weapons Convention and arrangements agreed to by the WHO) and nonbinding declarations and frameworks (such as the WTO Doha Declaration on Public Health, the Global Health Security Initiative, and the Pandemic Influenza Preparedness Framework) that sought to address infectious diseases with pandemic potential. While some have lamented the high degree of fragmentation in the governance of global health,29 the overall effect of the various arrangements and initiatives on pandemics has been a set of overlapping and mutually reinforcing actions that sustain coordinated action on infectious disease challenges.

3.1.1 Pandemic Preparedness and Response as a Security Threat
 

The WHO has been a core institutional element of the regime complex to address the challenge of pandemics. When it was created in 1948, the WHO marked a new and more coordinated approach to tackling infectious disease, replacing some of the more fragmented measures adopted in the early twentieth century. The WHO was mandated to develop international law on public health through legal conventions or treaties that set standards to promote public health (Article 19); legally binding regulations30 that set out specific actions that must be undertaken by member states in the event of infectious disease (Article 21); and recommendations or nonbinding guidelines for state policy (Article 23).31

In practice, the WHO has done much more by way of regulations than it has by treaty law. Furthermore, its role remains primarily directive rather than operational—even after waves of reform that responded to episodes of infectious disease over the past five decades. According to its Article 2 mandate, the WHO is the “directing and co-ordinating authority on international health work” and fulfills this role through normative guidelines, policy frameworks, and technical assistance. As the wording of Article 2 suggests, the organization was designed primarily for “expert coordination” rather than deeper political cooperation.32 The underlying assumption was that improving global health and fighting infectious disease were goals to which all states were equally committed. The primary task was therefore to identify common standards and priorities that they already had incentives to follow—even in the absence of robust monitoring or enforcement. In its expert-coordination role, the WHO has coordinated and catalyzed campaigns to eradicate and control several infectious diseases, with some successes—such as smallpox in the 1970s and SARS in 2003—and some notable failures—namely, HIV/AIDS in the 1980s and 1990s and the more recent Ebola crisis in West Africa.

One of the WHO’s main policy instruments for advancing global health security has been the IHR, which were last revised in 2005 and serve as both an early warning tool and a framework for coordinating responses to infectious disease. The core task of these regulations is to balance measures to facilitate global health security against the need to maintain international trade and travel and to safeguard individual human rights.

The IHR (2005) resulted from conscious efforts both to address barriers that had constrained effective cooperation in the past—including states’ concerns about infringements on sovereignty—and to incorporate institutional and legal approaches from other policy domains (particularly the Biological Weapons Convention, international trade and environmental law, and international human rights law). For example, Articles 5 and 6 of the IHR (2005) reflect the precautionary principle: states must assess all unusual health events occurring on their territory and notify the WHO of any that may constitute a “public health emergency of international concern” (PHEIC). Pandemic prevention will be enhanced—according to the logic of the IHR—by the duty to report “early and often,” before disease events morph into emergencies. Under the revised regulations, the WHO’s director-general has the authority to declare a PHEIC—and has done so at various times since 2005—and to issue temporary recommendations for its management and control. The director-general also has the power to act on information gathered from nongovernmental sources—a provision designed to address potential state reluctance to share sensitive data.33 For their part, states have several obligations under the IHR in the areas of surveillance, verification, cooperation, and information sharing. Crucially, they are also obliged to strengthen and maintain their domestic capacities to detect, assess, and respond to events (defined in the IHR as “core capacities”).

In theory, these twin ideas—the development of states’ core capacities and the duty of states to report on disease events—constitute promising building blocks for effective pandemic preparedness and response. The powers granted to the WHO in the IHR (2005) are unprecedented in the field of global health security and reflect the more benign geopolitical environment that marked what has been called the “golden age” of global public health governance.34 Yet, the regulations have suffered from the same weaknesses as many other contemporary international agreements.35 The obligations in the IHR are counterbalanced by the rights of states either to apply national health measures going beyond the WHO’s recommendations in the realm of trade and travel restrictions36 or to breach some of their obligations through invocation of the “necessity principle.” Moreover, the IHR constrain the WHO’s ability to act on independent information, stipulating that such data can be shared only after the so-called source state refuses to collaborate and only when justified by the magnitude of the public health risk.37 Global health lawyers also note that the WHO has a duty to reveal to the source state any independent sources of information, thereby creating a “chilling effect on the potential contribution of whistleblowers.”38 Finally, while the director-general of the WHO can declare a PHEIC, they must consult with the WHO’s Emergency Committee before doing so. Given the current structure of the committee, this provision enables political and economic interests to influence expert decision-making.

These and similar caveats reflect a stubborn reality of global politics and policy-making: states’ reluctance to transfer substantial authority to an international body when sensitive issues of sovereign control are implicated. This reality helps to explain why, when during the SARS outbreak the WHO managed to act relatively swiftly and effectively—including by obtaining and acting on independent information and “shaming” resistant governments—it was condemned for exceeding its powers and showing insufficient “deference to the sovereignty of affected states.”39

The WHO has also been heavily criticized in other cases of disease surveillance and response. In the initial stages of the 2009 H1N1 pandemic, for example, it followed the precautionary principle built into the IHR but was accused of overestimating the severity of the disease, thereby raising confusion and fear, and was also criticized for a lack of transparency and conflicts of interest benefiting the pharmaceutical industry. On the other hand, during the later Ebola virus outbreak, it was condemned for its delay in declaring a pandemic and for its initial failure to lead and coordinate the international response. WHO officials have also proven hesitant or slow in consulting the nonstate sources of information that the IHR empower them to use.40

Concern over the response to disease events like H5N1 and H1N1 was one of the issues that led the Obama administration and the WHO to co-launch the Global Health Security Agenda in early 2014. This multilateral initiative was aimed at accelerating implementation of the IHR, particularly in lower-income countries, so as to achieve a more standardized capacity to combat infectious disease.41 The ensuing Ebola crisis not only exposed the limitations of the architecture for pandemic preparedness and response but also drew the UN Security Council directly into health security, through its determination that the epidemic represented a threat to international peace and security and its creation of the UN Mission for Ebola Emergency Response in West Africa—the first time a UN health mission had ever been undertaken.42 Following the decisions taken by the Security Council, the United States deployed approximately four thousand engineers and military personnel to address the impact and spread of the disease. At a subsequent G7 meeting in 2015, German Chancellor Angela Merkel and UK Prime Minister David Cameron joined President Barack Obama in underlining that the Ebola epidemic had been a “wake-up” call for the global community and its governing institutions, which had proven slow and poorly prepared to fight the outbreak.

Multiple reviews of the Ebola crisis43 identified a series of weaknesses in the global response to pandemics, including those directly related to the WHO’s performance. The organization responded to the widespread criticism with a historical shift, from playing primarily a normative and supportive role to building a stronger operational capacity for health emergency response.44 It did so by creating a dedicated WHO Health Emergency Programme that cut across the regional structure of the organization (seen as a barrier to a more centralized approach) and a Contingency Fund for Emergencies. In the years running up to the COVID-19 pandemic, however, the fund had amassed only about a third of the required amount, and member states were still refusing to fund the program through assessed contributions.
 

3.1.2 Pandemic Preparedness and Response as a Global Public Good
 

An alternative framework for meeting the policy challenge of infectious disease conceives of pandemic preparedness and response as a “global public good.” Such an approach could provide significant benefits, including higher-quality surveillance, timely alerts, coordinated responses, and leading-edge research and development. Rather than positioning cooperation on infectious disease as a form of aid or development assistance—targeted at countries with weaker capacities—the global public goods perspective positions pandemic preparedness and response as an investment that meets the mutual interests of all: the benefits would be available to every country (i.e., they are nonexcludable), and each country would benefit without preventing others from doing so (i.e., they are nonrivalrous).45

However, global public goods are rarely supplied, because they require not only cooperative action “at the border” but also policy convergence “behind the border” in the form of domestic legislation and implementation. In addition, global public goods—like all public goods—suffer from incentives to free ride; that is, to benefit from an effective system of goods provision without “paying” for one’s fair share or undertaking required costly actions.46 This helps to explain why global public goods are often provided when a single dominant country (or small group of countries) takes the lead47 or when a global governing authority already exists that can incentivize cooperative behavior through rewards and punishments.

In the realm of infectious disease, the public goods framework operates at two levels. First, global public goods, such as disease surveillance or research and development, require both international and domestic capacities—although the full benefits of these may not be realized by all countries.48 Second, stronger national capacities to halt the spread of infectious disease “at home” can have positive externalities for other states around the globe. At both levels, resources need to be mobilized to ensure that public goods and positive externalities are realized; for lower-income countries, this often entails external financial support.

Moreover, the costs of public good provision are not only material (i.e., the costs entailed in building the infrastructure required to monitor and manage disease events) but also political (i.e., the potential costs incurred through meeting the requirements of transparency and information sharing). Information sharing itself can generate both economic costs, by leading to trade and travel restrictions on countries reporting a disease event, and domestic political costs related to inducing panic or uncertainty. In such cases, the incentive to contribute to the global public good is significantly weakened: so-called source states may have incentives to underreport disease outbreaks, and other states may have incentives to close borders preemptively. This latter dilemma led the World Bank, following the Ebola outbreak in 2014, to design a Pandemic Emergency Financing Facility to help provide countries with a form of financial compensation to manage the costs of declaring a disease event.49

Other pieces of the regime complex for global health also reflect a global public goods perspective. In the 1990s, the WHO began consulting nongovernmental sources for evidence of disease outbreaks, and in 2000 it formally established the Global Outbreak Alert and Response Network. A more recent attempt to provide the public good of disease surveillance is the Global Preparedness Monitoring Board, an independent monitoring and advocacy body co-convened by the WHO and the World Bank in 2018 to prepare for and mitigate the effects of global health emergencies.50

In addition, the decade prior to COVID-19 saw multiple schemes for sharing biological samples and genetic sequences of pathogens and for scientific cooperation on key aspects of the response to disease outbreaks (including treatments and vaccines). One mechanism for “multilateral virus-sharing,” the Global Influenza Surveillance and Response System,51 was challenged in 2007 by Indonesia’s refusal to share its human samples of H5N1 influenza, on the grounds that developing countries were freely sharing their viral specimens while being excluded from the benefits and facing high market prices for vaccines. Its declaration of “viral sovereignty,” which appealed to the UN Convention on Biological Diversity and was supported by other developing countries, was a key impetus in 2011 for the WHA’s adoption of the Pandemic Influenza Preparedness Framework, which sought both to regulate the entire cycle of pandemic influenza surveillance and response and to address the tendency of developed countries to hoard vaccines.

The development of the WHA framework speaks to the uncomfortable fact that, in the domain of infectious disease policy, the core problem has been less about free riding and more about the fact that states have not always perceived goods to be truly “public” (i.e., as nonrivalrous and nonexcludable). Instead, as the H5N1 incident illustrated, states have competed over what they believe to be scarce resources (pathogen samples, drug treatments, vaccines, information, and financial resources) that are rivalrous and/or excludable. Some have also used their sovereign control over these scarce resources to strike beneficial bargains (for example, trading samples for vaccine access).

These underlying political realities are exacerbated by the fact that a state’s response to health risks will be shaped by its unique set of capacities and vulnerabilities.52 Consequently, what high-income countries think is a global public good and thus are willing to pay for (such as the rapid sharing of information about disease outbreaks from around the world) has not always aligned with what low-income countries have most wanted; namely, to improve their provision of health-related public goods domestically (by obtaining scarce material resources from high-income countries). This variation in levels of state capacity and vulnerability creates a particular kind of cooperation problem for pandemic preparedness and response (for more on this, see Section 5). It also suggests that, while the mantra “no one is safe until everyone is safe” is a powerful moral imperative, not all actors will accept its political—or even epidemiological—validity.

Endnotes

• 28Joshua K. Leon, The Rise of Global Health (Albany: SUNY Press, 2015), chap. 1.
• 29See Garrett Wallace Brown and David Held, “Health: New Leadership for Devastating Challenges,” in Beyond Gridlock, ed. Thomas Hale and David Held et al.(Cambridge: Polity Press, 2017), 162–183.
• 30Technically, the process for states is to “opt out” rather than to “opt in” to the WHO’s regulations. National sovereignty is still respected under this process, but the approach is designed to put pressure on a state to opt out, which is deemed to be more demanding than the decision not to opt in. At the time, this solution was considered an innovative approach to the institutional design of this aspect of the WHO constitution.
• 31Lawrence O. Gostin and Benjamin Mason Meier, “,” Journal of Law, Medicine and Ethics 47 (4) (2019): 788–793.
• 32Eyal Benvenisti, “,” American Journal of International Law 114 (4) (2020): 588–597.
• 33The IHR stipulate that if the information gathered through nonstate sources is validated, the WHO can request correction of any reports received from the “source” state experiencing a disease event within twenty-four hours.
• 34David P. Fidler, “,” Global Health Governance 2 (1) (2009): 1–21.
• 35See the discussion by José E. Alvarez, “,” American Journal of International Law 114 (4) (2020): 578–587.
• 36For this aspect of the IHR, the WHO closely studied the WTO, especially its agreement on sanitary and phytosanitary measures.
• 37See IHR (2005), Article 10.
• 38Benvenisti, “The WHO,” 596. Benvenisti argues that, through these requirements to consult the source state, the revised IHR served to restrict the WHO’s basic coordinating function.
• 39David P. Fidler, SARS, Governance and the Globalization of Disease (London: Palgrave Macmillan, 2004), 142.
• 40Ibid., 582.
• 41The GHSA was initially launched by forty-four countries and the WHO for a five-year period. In 2017, the parties agreed to extend the GHSA through 2021 and to add other states, NGOs, and private companies.
• 42UN Security Council Resolution 2177, UN doc. S/Res/2177, September 18, 2014.
• 43For just one of many examples, see the panel report presented to the UN General Assembly in 2016: High-Level Panel on the Global Response to Health Crises, , UN doc. A/70/723 (New York: United Nations, February 2016).
• 44The WHO had deployed some personnel into zones experiencing pandemics prior to 2014, but the depth and scale of its organizational capacity were significantly increased after the 2014 Ebola outbreak.
• 45These are the defining features of all public goods. Global public goods are those that not only have strong qualities of “publicness” (i.e., they are nonrivalrous and nonexcludable) but also have benefits that are quasi-universal in scope, reaching across borders, population groups, and generations. See Inge Kaule, “,” in The Oxford Handbook of Global Policy and Transnational Administration, ed. Diane Stone and Kim Mahoney(Oxford: Oxford University Press, 2019), chap. 15.
• 46Richard D. Smith, Robert Beaglehole, David Woodward, and Nick Drager, eds., Global Public Goods for Health: A Health Economic and Public Health Perspective (Oxford: Oxford University Press, 2003).
• 47See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, rev. ed.(Cambridge, Mass.: Harvard University Press, 1971).
• 48G20 High Level Independent Panel, A Global Deal for Our Pandemic Age, 25.
• 49Felix Stein and Devi Sridhar, “,” British Medical Journal 358 (2017).
• 50The board built on the work of the Global Health Crisis Task Force created by former UN Secretary-General Ban Ki-moon in the wake of the Ebola pandemic.
• 51This system relied on a voluntary network of laboratories focusing on influenza viruses in cooperation with the WHO.
• 52Benvenisti, “The WHO,” 590.