Title: Legal Response to Excessive Trade Restrictions in the Context of PHEIC

Authors: Chen Weidong, Ma Lin

Abstract: The spread of excessive trade restrictions during the COVID-19 pandemic highlights the WHO and IHR’s failure to effectively prevent the restrictions and failure of countries that impose restrictions to comply with their commitments to multilateral cooperation under the WHO. Compared with other dispute settlement mechanisms in the international legal system, such as the WTO, the IHR rules are overly simple and their procedures are overly informal. It is highly uncertain whether the restricted countries can effectively and promptly protect their rights, which would deter states parties from relying on the IHR process to make a claim. Neither WHO rules such as Article 43 nor its enforcement mechanisms could function as a “safety valve” to prevent the abuse and misuse of excessive measures. The current WTO dispute settlement mechanism plays a limited role in solving the problem of excessive trade restrictions. Although this mechanism is the most effective and successful one among inter-governmental dispute settlement forums, disputes concerning excessive trade restrictions under the WTO framework would not necessarily be resolved as effectively as precedent practices. It usually requires at least two years to complete the panel review, which makes it almost impossible to achieve effective relief that is very urgently needed in the context of COVID-19. Considering that the disputes will unavoidably involve a complicated review when the respondent Member invokes the exception clauses, the dispute settlement process will undoubtedly be delayed further. Considering the experience gained from major international public health crises, particularly during the COVID-19 pandemic, the idea of completely refraining from visiting countries affected by travel and trade restrictions seems both unrealistic and unreasonable. It should be recognized that in the early stages of a pandemic, a country has the sovereign right to adopt or maintain limitations necessary for ensuring public health security. On the other hand, the conditions for applying trade restrictions should be clarified to prevent abuse and misuse. In this regard, in addition to emphasizing and following the scientific and necessity tests under Article 43 of the IHR, it could be proposed that emergency trade measures should be targeted, proportionate, transparent, and temporary, and based on the principle of non-discrimination. Moreover, it could be discussed to allow for retaliatory measures against countries that abuse trade restrictions. The authors suggest improving IHR rules, especially by modifying Article 43 and calling for establishing an expeditious dispute settlement mechanism under the IHR to ensure that all states parties abide by relevant obligations. International society urgently needs to resolve broad trade issues, including the phasing out of export restrictions. If countries repeat restrictive patterns, they might hinder the vaccine’s efficient production and equitable distribution against COVID-19. Countries might arbitrarily impose export controls on supplies and input necessary for producing vaccines or on the vaccines themselves. These actions would likely severely impact the vaccines’ availability, particularly in low-income countries.

Keywords: Excessive trade restrictions, COVID-19, PHEIC, WHO, WTO, Article 43 of the IHR