Legal Response to Excessive Trade Restrictions in the Context of PHEIC

Legal Response to Excessive Trade Restrictions in the Context of PHEIC Presented by CHEN Weidong, Professor at Law School, University of International Business and Economics (UIBE) Date: 2 February 2021 The spread of excessive trade restrictions during the COVID-19 pandemic highlights the failure of the WHO and IHR to effectively prevent the restrictions and the failure of countries that impose the restrictions to comply with their commitments to multilateral cooperation under the WHO. Could the country resort to the enforcement mechanism under the IHR, including the dispute settlement mechanism, to safeguard its rights and benefits? If the existing IHR mechanism is weak and unreliable, is it feasible under the rules of World Trade Organization (WTO) to protect the rights of countries which suffered from the trade restrictions? Which loopholes exist in the existing IHR system for the purpose of effectively preventing excessive trade restrictions and maintaining global public health security, and how could these loopholes be improved? IHR's Mechanism for Excessive Trade Restrictions and Its Dysfunction: 1. IHR's Regulation on Restrictive Trade Measures of States parties 2. Article 43 of IHR 3. Dysfunctions in the IHR Enforcement Mechanism Availability of the WTO to Regulating Excessive Trade Restrictions: 1. Whether WTO Rules Could be Relied on for Claiming Relevant Rights a. Export control on certain medical goods and foodstuffs b. Mandatory suspension on airlines and entry ban on foreigners c. Suspension on cross-border transport of goods d. Suspension on import of goods 2. The Limited Role of the WTO The Possible Improvement to Preventing Excessive Trade Restrictions: In the face of the unprecedented COVID-19 pandemic, one of the most urgent tasks for all countries is to respond to the pandemic and its complex health, social, and economic impacts. As stated G20 Leaders' Summit Statement on COVID-19 in March 26 2020, countries need to address the disruptions to international trade caused by the pandemic and minimize the disruptions to trade and global supply chains. China, together with like-minded countries, should strengthen consultation and cooperation at the multilateral and bilateral levels to promote the implementation of the objectives of G20 Leaders' Summit Statement on COVID19. Conclusion: Trade restrictive measures disrupt supply chains, depress production, and prolong and exacerbate the health and economic crisis with the most serious effects likely on the poorer and more vulnerable countries. Fortunately, some countries and intergovernmental organizations have taken some coordinated action. In March 2020, for example, Germany, France, and the European Commission negotiated an end to intra-European export restrictions on medical supplies. Some countries lift emergency measures and removed restrictions. The urgent need for international society is to resolve broad trade issues, including the phasing out of export restrictions. If countries repeat the restrictive patterns, they might hinder the efficient production and equitable distribution of the vaccine against COVID-19. Countries might impose arbitrarily export controls on supplies and inputs necessary for the production of vaccines or on the vaccines themselves. Such actions would likely have a severe impact on the availability of the vaccines in low-income countries in particular. COVID-19 pandemic should not be an excuse for anti-globalization. In the era of globalization, international law can truly paly an effective role in dealing with pandemics only when it becomes a legal mechanism of "cooperation" rather than "coexistence".