The World Health Organization's New International Health Regulations: Incursion on State Sovereignty and Ill-Fated Response to Global Health Issues

I. INTRODUCTION The fact that "[i]nfectious diseases are the leading cause of death worldwide"1 may explain why the World Health Assembly2 chose to adopt a new set of International Health Regulations ("IHRs 2005") in May 2005. According to the World Health Organization ("WHO"), the regulations will "prevent, protect against, control and provide a public health response to the international spread of disease. "3 While the purpose of the IHRs 2005 remains the same as that of its predecessor-to "ensure the maximum protection of people against the international spread of diseases, while minimizing interference with world travel and trade"4-the IHRs 2005 gready expand the legal obligations of WHO member states in the area of public health operations.5 The IHRs 2005 also call for significant changes in the operations of the WHO itself. In calling for these changes, the IHRs 2005 have taken into account recent changes in the political, economic, and technological climates that have forced the global community to think collectively with regards to public health governance.6 At the forefront of international concern is the emergence of newly discovered infectious diseases such as SARS in 2002 and the highly virulent strain of avian influenza (popularly known as "bird flu") in 2003. Although a series of travel restrictions and other methods successfully controlled the spread of SARS, there is no evidence that similar methods will prove effective in combating the threat of avian influenza.7 To begin with, the avian influenza virus occurs naturally in birds and has already spread over vast areas as a result of bird migratory patterns. The virus, first detected in Asia, has made its way to Europe and Africa and will more than likely reach North America this spring.8 Furthermore, the avian influenza virus is "capable of infecting humans and may evolve into a highly transmissible strain,"9 making it the primary candidate for triggering a highly lethal human influenza pandemic. Despite the international community's need to revise the outmoded regulations to adequately deal with these and other public health threats, the revisions finally adopted by the World Health Assembly have the potential to conflict with the cornerstone of international law-state sovereignty. According to the principle of state sovereignty, states decide which actions or measures take place within their territory-not other nation-states and certainly not third-party organizations such as the WHO. And even if WHO member states fully accept the most recent regulations and publicly demonstrate their compliance, public international law has consistently shown that such compliance only continues so long as it remains beneficial to the member state. Although the IHRs 2005 provide additional tools to help combat international health threats, the underlying factor affecting any program's success continues to be the immediate economic benefits derived as a result of state compliance. After all, WHO member states do retain the option of simply not complying with any regulation adopted by the World Health Assembly.10 Part II of this Development discusses the legal initiative undertaken by the WHO when it first drafted the International Health Regulations in 1969 ("IHRs 1969"). This section also outlines the purpose of the IHRs 1969 and highlights some of their major shortcomings. section II then discusses the 2005 revisions to the IHRs 1969 and analyzes them with particular attention paid to the increased legislative and constitutional power granted to the WHO. section III considers the potential conflict between the IHRs 2005 revisions and the principle of state sovereignty as well as the revisions' conflict with federal structures of government inherent in a number of large Western states. Lastly, section III addresses the extent to which the WHO is seeking to become a supranational organization capable of side-stepping states' rights irrespective of geopolitical boundaries. …