COVID-19 Symposium: The Declaration of a Public Health Emergency of International Concern in International Law

[Dr. Mark Eccleston-Turner is a Lecturer of Law at the University of Keele, and the 2020 Distinguished Visiting Professor at the University of Georgetown.]

Introduction

On 30 January 2020, the World Health Organization (WHO) Director-General Tedros Ghebreyesus declared COVID-19 a Public Health Emergency of International Concern (PHEIC). The declaration of a PHEIC serves as a clarion call to the international community to provide political, financial, and technical support to a public health emergency. A PHEIC declaration also empowers the Director-General to make Temporary Recommendations that, although non-binding, seek to provide public health guidance and counteract unnecessary restrictions on international trade and travel. While the Recommendations may carry normative weight, during past PHEIC declarations States have not complied with these recommendations.

 This post outlines the status of the PHEIC in international law and analyses the manner in which the criteria to declare a PHEIC were interpreted and applied in respect of COVID-19. It raises concerns that the WHO and its agents failed to properly interpret and apply the system of legal rules member states created to make such a declaration through the International Health Regulations (IHR).

Public Health Emergency of International Concern

The IHR is the treaty governing global health security. Adopted by the World Health Assembly (WHA) under Articles 21 and 22 of the Constitution of the WHO, it is legally binding on 196 States Parties. The IHR aim to ‘prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’. Article 12 of the IHR sets out that the Director-General shall determine whether an event ‘constitutes a public health emergency of international concern in accordance with the criteria and the procedure set out in these Regulations’. In order to do so, the Director-General shall consider:

(a) information provided by the State Party; (b) the decision instrument contained in Annex 2; (c) the advice of the Emergency Committee; (d) scientific principles as well as the available scientific evidence and other relevant information; and (e) an assessment of the risk to human health, of the risk of international spread of disease and of the risk of interference with international traffic.

In addition to the role of the Director-General, the IHR Emergency Committee (EC) is central to the PHEIC process – it is convened by the Director-General in order to advise if the conditions for a PHEIC have been met, and what Recommendations to make to Member States in response to the event. Article 48(1)(a) of the IHR states that the EC ‘shall provide its views on … (a) whether an event constitutes a public health emergency of international concern’. There is no scope within Article 48 for the EC to take into consideration anything other than the legal criteria for a PHEIC.

First meeting of the EC

The EC first considered if the coronavirus outbreak met the criteria to be declared a PHEIC on 22 January 2020. The EC were unable to reach a conclusion at that stage – even holding a vote, which resulted in a tie, the first time this is known to have occurred (the EC process has been criticised for lacking transparency). The DG instructed them to meet the following day to continue their deliberations.

Second meeting of the EC

The second meeting of the EC occurred on 23 January. At that time, the advice was that the event did not constitute a PHEIC, but the EC members agreed on the urgency of the situation and suggested that the EC should be reconvened in a matter of days to examine the situation further. The conclusion appears to be predicated on the lack of necessary data and the (then) scale of global impact. At that time there were only four cases outside of mainland China, and all four appeared to have travel history to the affected region. There were again divergent opinions within the EC itself, with several members consider[ing] that it is still too early to declare a PHEIC, given its restrictive and binary nature [of the PHEIC declaration].

Division within the EC appears to have centred on the meaning of ‘international spread’, within Article 1 of the IHR. In the event that all known cases outside of China were of individuals who were infected in China, but then travelled internationally, an argument could be made that this does not constitute international spread. However, this is at odds with the text of IHR, and the manner in which the criteria have previously been interpreted. A PHEIC is, by its very definition, international: it is an ‘extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated international response’. However, that does not mean a disease must have crossed international frontiers, or have local spread in a country beyond that which it originated in; it must merely have the potential for, or there must be a risk of, cross-border transmission. Although most outbreaks that have been declared as PHEICs had already crossed national borders and had human-to-human spread within a new country, not all have. The 2014 PHEIC declaration for the resurgence of wild Polio occurred without cross-border transmission; it was the risk of international spread which was the determining factor.

The EC further justified their recommendation on the basis that ‘now is not the time’ to declare a PHEIC. This is quite bizarre. The EC did not expressly state that the criteria to declare were not met at this stage, merely that now is not the time to make such a declaration. By a plain reading of the treaty, the criteria did appear to be met, and the wording of the EC – with its emphasis on timing – appears to suggest that they took into consideration factors beyond the criteria for a PHEIC outlined in Article 1 – what in administrative law would be deemed ‘irrelevant considerations’.

Third meeting of the EC

On 30 January 2020, the WHO declared the outbreak of COVID-19 a PHEIC. On the date of the declaration, there were 7,818 cases of COVID-19 confirmed globally, affecting 19 countries in five WHO regions at that time. The DG stated that the declaration was made in light of how COVID-19 would impact developing countries, not that the events within China were a PHEIC. However, this was eight days after the first meeting of the EC, when the criteria to declare were met. The reasons for the delay are not clear, though this does raise interesting questions regarding the law of responsibility and international organization duties, and calls into question the very utility of the PHEIC process as a function of international law.

Conclusion

This short comment has outlined the purpose, powers and processes associated with the declaration of a PHEIC under the IHR. In doing so it has highlighted the disconnect between the PHEIC in international law, and how the criteria to declare were interpreted by the EC in respect of COVID-19. In short, it appears that the EC and the DG (in following their advice) failed to properly adhere to the IHR by taking into consideration other factors beyond the treaty and not making a declaration when the criteria were met. The implications of this should not be underestimated; it is not the case that law must be adhered to properly because it is the law, but because a failure to follow the law has wider implications for the normative authority of the IHR, and the WHO.