Chapter 2 describes how this text will develop, moving from LOAC basics to somewhat more difficult legal situations and their resolution, to complex LOAC concepts and their often less-than-clear resolutions. A thumbnail sketch of the “father” of LOAC, Francis Lieber, is given, along with his LOAC foundational Code of 1863, including a basic element of that Code, the “combatant’s privilege,” which allows lawful combatants to kill and wound, destroy, and damage, without penalty of law – but only lawful combatants. The first Geneva Convention (1864) is described, along with brief accounts of one or two other basic LOAC treaties. Finally, the actual “law” of the law of armed conflict is described: the 1899 and 1907 Hague Peace Conferences, both of which continue into today to be international laws for which violators are being convicted. Finally, brief extracts from actual trials that illustrate elements of the chapter are provided to demonstrate to the student that the reading represents real-world events with modern application.

Chapter 4 brings the student fully into today’s LOAC with details of 1977’s Additional Protocol I and Protocol II. It explains why there was a need to update the 1949 Geneva Conventions and why A.P.s I and II, initially favored by the US, turned out not to be what the US and her allies had anticipated. There were positive changes and additions in both Protocols, as well as regrettable LOAC modifications. Both sides of that coin are examined, with discussion of the lasting results of both the positive and negative changes. It is significant to note that US self-interest did not always prevail, and to explain the basis of that lack of international consensus. Relaxing the requirements for prisoner of war status continues to block US ratification of either Protocol. In the A.P. negotiations the US paid a price for its somewhat ill-advised Vietnam venture but America has, by and large, learned to live with the AP I and II provisions it initially fought. Additional Protocol III (2005), far less significant than the earlier Protocols I and II, is also discussed, if briefly.

The PHEIC mechanism is a tool designed to alert the globe to a new or spreading health emergency that may pose a concern to international travel and trade, and for which an internationally coordinated response may be required. In this chapter, we describe the roles of actors and process for declaring a PHEIC, providing clear and separate roles for state parties, the WHO DG, and the EC. In doing so, we lay out two of the central claims of this book. First, that the criteria to declare a PHEIC have been subject to broad interpretation by the EC beyond the legal text and mandate. Second, and linked to the first claim, that the EC is taking into account political considerations in decision making, a prerogative reserved for the DG, and in turn the DG has allowed this to occur. In the concluding section of this chapter, we outline the implications these two claims have on the good governance and legitimacy of the IHR and WHO.

Role of states that are party to the IHR

State obligations in respect of the PHEIC declaration are made up of two interlocking components: first, strengthening the national health system to be able to detect and assess emerging health threats rapidly; and second, making timely notifications to the WHO regarding potential PHEIC events. Under the IHR, state capacity becomes an issue of legitimate international concern, outlined at Articles 5 and 13, as well as Annex 1, and must correspondingly ‘generate accountability and responsibility akin to those arising from erga omnes obligations’. Adherence to these articles has been measured initially by voluntary self-reporting of compliance and subsequently through a Joint External Evaluation (JEE) of states’ capacities, a voluntary peer-review process of states’ current health emergencies infrastructure, although many states have yet to undergo this process.

The second duty of states that are party to the IHR is the actual reporting of events that may constitute a PHEIC. Article 6 raises the obligation for states to assess health events using the decision-making instrument found at Annex 2 (see Figure 2.1) of the IHR and to provide relevant notification to the WHO regarding a potential or actual health emergency within their territory, furnishing the WHO with accurate and timely information in an ongoing manner, following the initial notification of an event.

The long-standing assumption in the IR literature is that small states have very little influence in IOs. Or, if they do appear to have influence, their impact is a chimera that masks the power of larger ‘system influencing’ states who are the ones really determining outcomes. If this is correct, why do small states participate in IOs at all? The creation of a large number of small states in the second half of the 20th century has seen the membership of IOs expand rapidly. The Pacific state of Samoa, for example, which has a resident population of little more than 200,000 people, is a member of 33 IOs (not including numerous regional organizations, sporting, religious, and other social organizations), while Vanuatu, which has a similar population size, is a member of 36: crude but impressive measures of this expansion (Corbett and Connell, 2015: 442). The aim of this chapter is to explain why some SIDS have sought to participate when their limited capacity would appear to favour free-riding or opting out of multilateralism altogether.

The short answer is that small states see their participation in IOs as serving their interests. But to understand this we have to differentiate between different types of small states and the ideas they have about their interests. We distinguish between three common narratives about how SIDS see their participation. At the most basic level, small states participate to secure sovereign recognition of their status as states. That is, participation is a form of conformity that incidentally secures survival (Sharman, 2015, 2017). For some SIDS this is the sum total of their engagement with IOs and their membership of different organizations is tightly bound to those that will maximize this objective at the lowest cost (that is, the UN). This has led to the perception that they get a ‘free ride’ (Olson and Zeckhauser, 1966). A second reason is they participate because they believe it will contribute to their development. These states engage selectively on certain issues and in certain IOs where they believe they are likely to either extract the most resources or gain S&DT for their economies. The majority of SIDS are in this group. The final reason is that SIDS have the greatest stake in the function and continuity of the LIO.

Climate change is the policy issue most commonly associated with the influence of small states and SIDS in particular. It is therefore a ‘most likely’ case (Eckstein, 1975) for their influence. Climate change magnifies the common dilemma for small states – that they have to fulfil the minimum requirements of modern statehood with limited resources or capacity. It also represents a significant challenge to the legitimacy of IOs because the smallest members will bear the disproportionate impact while the largest and richest are responsible for the vast majority of emissions. The impact of climate change on SIDS thus infringes on two key norms of the LIO – the sovereign equality of states and the right to development.

The consequence is that the creation of the SIDS category and the prominence provided to SIDS in climate change negotiations and policy suits both small states and IOs: it allows the countries we call SIDS to ‘perform vulnerability’ while also enabling IOs to generate ‘throughput’ legitimacy. But to understand this we have to recognize that the category SIDS is not a neutral or technical label. It is a political tool designed to realize specific ends. The creation of the label SIDS, the associated groupings at different IOs, and the fact that actors talk about a ‘SIDS agenda’, is the most compelling evidence we have for the way these states have altered the practices of IOs.

This chapter tells this story from both sides. We start with small states and show how they have pressured IOs to recognize their unique vulnerabilities. We then tell the story of IOs and how they have responded to these concerns. Small states, acting as a group, have been central to each of the major climate summits since Rio. They are key negotiators at COP. They were integral to the formation of the High Ambition Coalition (HAC) in the lead up to the Paris COP and thus played a central role in the subsequent agreements. This story is well documented so we pay particular attention to the IMO and the way SIDS have recently positioned themselves to achieve greenhouse gas (GHG) reductions.

The climate and economic vulnerabilities of SIDS are now well established and widely accepted by IOs. But the idea that small size creates specific vulnerabilities is not restricted to these policy arenas. Indeed, once the idea that being small is a unique condition is accepted, it is no great leap of imagination to consider how other policy areas might be shaped by state size. In doing so the relevant IOs have the potential to become co-opted to the SIDS agenda. For instance, food quality is one of the main drivers of health outcomes and so small, remote economies are more vulnerable to price fluctuations and availability of supplies. Likewise, economies of scale – the cost of equipment and pharmaceuticals, and the availability of skilled labour – limit medical treatment in small states. But, despite their interests and the fact that individual small states have found the WHO to be receptive to these arguments, SIDS do not have the same profile in that IO as they do in the UNFCCC. Likewise, SIDS may have intellectual property concerns but, like many middle powers with few direct interests, they rarely engage with the WIPO.

In this chapter we explore the absence of small states in these two IOs. This absence is relative: we are not claiming there is no activity but rather that this activity has not generated the same profile and attention for SIDS, as a global group, that it has in the IOs we covered in the previous chapters. Indeed, in the interests of generating ‘throughput’ legitimacy these IOs are much more interested in finding a way to serve the small states agenda than the small states themselves who have typically been passive members. These cases therefore reinforce our claim that to understand the variation in outcomes across institutions we need to account for both sides of the story: the interaction between IOs and small states.

To underscore this point, we reverse the structure used in the previous two chapters – we start with the IOs and then discuss the SIDS. This reversal reflects that the participation of SIDS and the adoption of the SIDS agenda in these IOs have largely been supply-rather than demand-driven. It has also typically been tokenistic.

The PHEIC mechanism has been fraught with tension since it was first introduced in 2005, with the revisions to the IHR. As this book has shown, the declaration process and decision making underpinning a declaration are the source of many of the inconsistencies regarding the PHEIC.

In the wake of COVID-19, and the widespread failures of the global health architecture to manage disease transmission, many elements of the system will come under review, and likely reform. While it is too early to know the outcomes of such processes, it is likely that the IHR will be revised in some format in the coming years, or be replaced by, or replicate, a similar mechanism through the proposed ‘pandemic treaty’. We write this book to inform such discussions and demonstrate the need to ensure that any power bestowed upon the DG is exercised in a reasonable and proportional manner. In doing so we highlight the following arguments.

First, the PHEIC criteria, as laid out in the IHR, have been inconsistently applied by the DG and the EC throughout the history of PHEIC declarations and non-declarations. To this end, there have been PHEICs declared that do not appear to meet the objective criteria found at Article 1 (and nor did the EC describe these as such). Equally, there have been other events whereby the criteria appear to have been met, but no EC was convened by the DG, or an EC was called, and a PHEIC was not declared. Notably, while the convening of an EC remains the decision of the DG, the decision about declaring a PHEIC or not appears to be in practice at the discretion of the EC, rather than the DG simply taking advice from the EC. The role of the EC has thus grown in prominence, and through increased technocratization, the EC has been able to bolster its role within the IHR and governance of health emergencies, affording itself the option to consider social, economic and political interferences in the strict criteria for the PHEIC process.Indeed, as the PHEIC process has developed over successive outbreaks, it appears that there has been greater consideration of factors beyond the treaty criteria and, through continual use of such justifications for the PHEIC declaration the EC has been further empowered to depart from the three criteria for which it is allowed to advise the DG to declare a PHEIC:

International Sanitary Conferences

Modern-day international cooperation for the control of infectious disease began in 1851 with the first International Sanitary Conference (ISC). In these meetings, ten European (city) states and Turkey gathered to map out coordinated guidelines to minimize the effects of disease along trade routes, spurred on by a series of cholera outbreaks in the 18th and 19th centuries, which had devastated port cities. Importantly, their mandate was to establish mechanisms to reduce disease spread, and to do so with minimal interference with international trade – a balancing act that remains at the very heart of the current IHR. Conferences continued for almost a century, expanding membership of participating states, and topics covered. While the ISCs were progressive in respect to recognizing the need for international cooperation, they were hampered by the inability to agree to terms, and indeed differences in opinion about understanding disease transmission. This limited efforts to create common processes for outbreak response; a tension that continues to blight cooperation for health security 170 years later. Despite these setbacks, ISCs did identify key tools for international infectious disease control: the standardization of quarantine at points of entry; the reporting of outbreaks internationally; and public health capacities to respond to an epidemic. By the early 20th century, international health cooperation led to the development of intergovernmental organizations for health: the Office International d’Hygiène Publique (OHIP), the Health Organization of the League of Nations and the International Sanitary Bureau, the precursor to the Pan American Health Organization (PAHO).

Such international cooperation greatly expanded in the wake of the Second World War with the creation of the WHO, a key pillar of the post-war multilateral system. As part of this mandate, the World Health Assembly (WHA) (the legislative arm of the WHO) was granted the authority to adopt regulations concerning sanitary and quarantine requirements to prevent the international spread of disease. Such activity is structurally aligned to the Constitutional Functions of the Organization, which state that the WHO will ‘establish and maintain administrative and technical services as may be required including epidemiological and statistical services … and to stimulate work to eradicate epidemic, endemic and other diseases’.