Closing the Doors on Health Nationalism: The Non-emptiness of the Legal Duty to Cooperate in Pandemic Response under Lex Specialis

Abstract

No one is safe until everyone is safe. Although this phrase has received wide consensus during COVID-19, this pandemic has witnessed a surge in health nationalism. States have imposed export restrictions on COVID-19-related medical supplies and vaccines seeking to preserve them for their own populations. This has adversely affected the availability of those necessary tools in other countries undermining their efforts in fighting the pandemic. Thus, it could be argued that States have violated their obligation to cooperate under Art. 44 of the 2005 World Health Organisation (WHO) International Health Regulations (IHR). Nevertheless, States’ export restrictions have been legally justified under the General Agreement on Trade and Tariffs (GATT). Does this mean that the duty to cooperate is an empty obligation that fails to counter health nationalism? It is the purpose of this paper to demonstrate otherwise using the principle of lex specialis derogat legi generali. Under this principle, the duty to cooperate in pandemic response under Art. 44 of the IHR prevails over States’ rights under gatt, rendering health nationalism legally unjustified.