two - A Public Health Emergency of International Concern: Between Legal Obligations and Political Reality

Summary

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.