Defunding WHO not the solution to defusing Covid-19 tensions

There are other ways to address the global health body's shortcomings to avoid it becoming another flashpoint in US-China ties

In a recent thoughtful and wide-ranging commentary, The Endangered Asian Century, Prime Minister Lee Hsien Loong focused on the troubled United States-China relationship and the fact that Asia-Pacific countries such as Singapore live at the intersection of the interests of major powers and must avoid being caught in the middle or forced to make invidious choices.

As it is, there are many areas of friction in Sino-American relations, including trade policies, the South China Sea and alleged industrial espionage. Covid-19 has added one more - the World Health Organisation's (WHO) handling of the outbreak. As PM Lee noted in his article in Foreign Affairs, the pandemic is exacerbating US-China tensions, increasing mistrust and mutual blame.

The danger is that the WHO becomes yet another flashpoint in Sino-US ties and a test of loyalty for other countries.

Critical of the WHO's handling of the virus situation and its relationship with China, the Trump administration has indicated that it will suspend funding for the organisation. While the US would not thereby cease to be a member state of the organisation - Article 7 of WHO's Constitution provides that if a member fails to meet its financial obligations, the World Health Assembly of the organisation may only suspend the voting privileges and services to which a member is entitled - withdrawal of US funding would have serious repercussions.

According to the WHO's fourth-quarter 2019 statistics, over the two-year period from 2018 to 2019, the US was its biggest contributor to the tune of US$893 million (S$1.2 billion).

But some three quarters of the US' contributions (US$656 million) were voluntary, not obligatory assessments charged to state members. With respect to voluntary contributions, the Bill & Melinda Gates Foundation was the second-largest contributor over this two-year period (US$531 million). In fact, obligatory assessments on member states make up only 17 per cent of WHO's total funding, which shows how dependent the organisation is on voluntary contributions.

Moreover, the bulk of the US' voluntary contributions were directed to specific programmes that have little or nothing to do with Covid-19. Presumably, these are programmes that the US considers to be worthwhile in their own right, which raises the question as to what cutting off funding will achieve.

Singapore is a strong supporter of the WHO. While its financial contributions over the past two years may seem modest (some US$4.5 million), Singapore is the second-largest contributor among Asean member states and one of the most significant ones in the world when measured on a per capita population basis.

A Joint External Evaluation carried out by the WHO in 2018 to assess Singapore's core capacities under the International Health Regulations (IHR) praised Singapore's actions.

(In addition to WHO's Constitution, which provides for the establishment and structure of the organisation, the International Health Regulations (2005) was adopted by WHO member states. It is the legal framework for global health security and requires all WHO member states to develop minimum core capacities to detect, assess, report and respond to public health events and emergencies in conjunction with the WHO.)

The Joint Evaluation Report unanimously agreed that Singapore has demonstrated strong leadership and a highly developed capacity to detect and respond to potential public health emergencies. In particular, it singled out Singapore's use of new technologies for detection and response systems, its forward planning and its highly motivated staff, and it underlined that it looked forward to Singapore playing a leadership role in enhancing IHR capabilities at the regional and global level.

As for Covid-19, the obvious priority is to stem the spread of the virus. Singapore knows this full well, as witnessed by its circuit breaker measures, including their enforcement, and the cautious reopening of business and social life.

By its global nature, the WHO undoubtedly has a constructive role to play in the fight against Covid-19, particularly in regions that are currently being hit hardest, such as Latin America, or are particularly vulnerable, such as Africa, South Asia and the Middle East.

Once the virus is controlled, there will be a time and place to study how it originated and what steps can be taken to reduce future outbreaks of a similar nature.

WHO director-general Tedros Adhanom Ghebreyesus at a press conference last month. The writer says the WHO could become yet another flashpoint in Sino-US ties and a test of loyalty for other countries. PHOTO: AGENCE FRANCE-PRESSE

However, it is unlikely that finger-pointing or attribution of blame - much less the institution of domestic lawsuits against China that have been brought primarily for political reasons, and that have little chance of success, given the limitations on suing foreign states under sovereign immunity principles or executing against their assets - will be conducive to the collective effort that will be required to prevent and control future pandemics.

Singapore is a "rule of law" society and the Government places considerable importance on respect for international law.

As Professor S. Jayakumar noted in his book Diplomacy: A Singapore Experience: "For a small country, observance of international law is critical to safeguarding our sovereignty, independence and other interests."

The IHR, which are binding on the states party to them, contain rules and mechanisms for gathering information and investigating issues relating to the origin and causes of the virus. If collective action represents the best chance for identifying where the virus came from and minimising the risks of future outbreaks, those mechanisms should be looked to in the first instance.

Under the IHR, a member state is obliged to notify WHO of all events within its territory which may constitute a public health emergency of international concern. A recent report issued by the Chinese government states that China preliminarily identified the coronavirus as the pathogen of the epidemic on Jan 8 and has been updating WHO daily since Jan 11.

The IHR also place obligations on member states to continue communicating to WHO information about the notified event, including the source and type of risks, and the conditions affecting the spread of the disease.

The IHR obligate member states to collaborate, to the extent possible, in the detection and assessment, and response to, events such as Covid-19. This would be an appropriate starting point for investigating the cause or source of the virus. But it is one that WHO is best placed to follow up on in accordance with the regulations.

Under the IHR, in the event of a dispute between one or more member states concerning the interpretation of those regulations, the states concerned shall attempt to settle that dispute by negotiations. Disputes that cannot be so settled may be referred to the director-general of WHO, but only if the states concerned agree. Arbitration is also a possibility, but once again, it depends on the consent of the relevant states.

In contrast, if there is a dispute between one or more state parties to the IHR and WHO itself, rather than a dispute between two member states, that dispute can be referred to the World Health Assembly whose Constitution and responsibilities are set out in WHO's Constitution. In other words, if there are disputes relating to how a state or WHO handled Covid-19 under the IHR, there are means for addressing those matters.

WHO's Constitution also provides for disputes over the interpretation or application of its Constitution (but not the IHR, which have separate dispute resolution mechanisms) to be submitted to the International Court of Justice.

The international legal system does not always provide for perfect solutions. Moreover, WHO itself has had some mis-steps (advice on wearing masks, risk of asymptomatic transmission). But a far more constructive approach to dealing with the aftermath of the virus would appear to be collaboration and information sharing within the framework of WHO rather than trying to attribute blame.

It should be in every country's interest to do the utmost to minimise the risk of another pandemic such as Covid-19, which has had such a devastating effect on people's lives and livelihoods. A collective effort to this end offers the best chance of achieving this goal.

• Rodman Bundy is a foreign lawyer specialising in public international law, arbitration and dispute resolution at law firm Eversheds Harry Elias LLP in Singapore. He represented Singapore in the case concerning sovereignty over Pedra Branca before the International Court of Justice.

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A version of this article appeared in the print edition of The Straits Times on June 12, 2020, with the headline Defunding WHO not the solution to defusing Covid-19 tensions. Subscribe