Frederick M. Abbott

Child-Proofing Global Public Health in Anticipation of Emergency, Washington Univ. Global Studies L. Rev., Vol. 20, No. 3, pp. 583-92 (2021)

link to SSRN: http://ssrn.com/abstract=3789677 (pre-publication proof)

Abstract

The response of the international community to the COVID-19 pandemic has been characterized by a lack of transparency, substantial gaps in scientific understanding, inconsistent communication, lack of capacity for the manufacture of vaccines, substantial gaps in preparedness for diagnostics and personal protective equipment, absence to date of an effective treatment, and political conflict. What makes most of these problems the more glaring is that we understood the gaps well in advance, but we were not prepared to address them.

Regrettably for the international community, the pandemic struck during a confluence of political trends that culminated in strong nationalist and anti-science political movements.

Can International law provide a more resilient framework in which the decisions of national leaders during crisis are less likely to cause harm? A framework in which we are less susceptible to ad hoc and incoherent decision making. In a way we are asking whether international law can child-proof the working space of global public health, making it less susceptible to the transient ebb and flow of national political leaders?

A fully functioning global public health system would prepare us in advance to address viral and other pathogenic outbreaks in terms of robust R&D platforms and sound manufacturing infrastructure, it would alert us to an outbreak at the earliest possible date, and it would instruct us regarding the appropriate interim protective measures to take, all without triggering perceptions of personal insecurity that lead to social unrest and conflict. 

While flagging some of the potential obstacles it is nevertheless worth considering the possibility for a comprehensive International arrangement to prepare for and address future pandemic outbreaks. Given the many interests implicated by pandemic outbreaks – which COVID-19 reminds us can have extensive and devastating impacts around the world – it might be well to envisage a self-standing regime, or a regime negotiated under the auspices of the United Nations.This would take into account the “political equality” of the principal multilateral institutions.

An international convention or other mechanism to address a pandemic must create winners. It cannot be perceived as depriving Party A to satisfy the needs of Party B.