On July 17, 2019 the Director General of World Health Organisation (WHO) declared that the Ebola outbreak in the DR Congo constitutes a Public Health Emergency of International Concern (PHEIC). The declaration took place after an emergency committee issued its advice in the same sense.
The PHEIC declaration raises question on its legal implications. What exactly does it mean?
The International Health Regulations (IHR) Treaty determining public health emergency of international concern state that; “The Director-General shall determine, on the basis of the information received, in particular from the State Party within whose territory an event is occurring, whether an event constitutes a public health emergency of international concern in accordance with the criteria and the procedure set out in these Regulations.”
To begin with, DR Congo member of WHO. The International Health Regulations Treaty was designed to prevent and control the international spread of disease.
Its goal is to keep the world safe from transmissible diseases like this by requiring countries to report dangerous outbreaks so their neighbours can be on the lookout for cases and prepare to respond if needed.
A PHEIC gives the WHO some temporary powers it can wield in a crisis. For instance, it can share information about what’s happening with other countries, even without the consent of the affected nation.
With respect to the legal regime of the Public Health Emergency of International Concern (PHEIC), it is solidly laid down in the IHRs stemming from the WHO Constitution.
The IHRs were approved at the 58th World Health Assembly in 2005, in accordance with Article 21 of the Constitution of the WHO.
This provision gives the World Health Assembly the authority to issue regulations, inter alia, in the subject of “procedures designed to prevent the international spread of disease”.
Notably, the IHR do not require further ratification by states to enter into force, rather only a two-thirds majority vote in the World Health Assembly (Article 60 of the WHO Constitution).
The IHRs, adopted under this procedure, become binding on all WHO Member States.
The IHR entered into force in 2007, and are currently binding on all 194 WHO Member States and Liechtenstein. Interestingly, all 193 Member States of the United Nations are members of WHO [the main UN health agency] by accepting its Constitution.
Article 1 of the IHR defines a PHEIC as “an extraordinary event that poses a public health risk to other countries through international spread and that potentially requires a coordinated international response.”
Furthermore, Article 12(1) IHR gives the WHO Director-General the authority to determine whether an event constitutes a PHEIC.
As established in Article 48 IHR, prior to issuing this declaration, the WHO Director-General must convene an Emergency Committee composed of experts in the field as the situation so requires. One of these experts is to be proposed by the state parties affected by the public health event.
In short, it’s a tool the WHO’s Member States have given the global health agency to help it deal with difficult transmissible disease situations.
Once the Emergency Committee recommends the Director-General that an event is a PHEIC, it most obviously triggers the financial resources mobilisation.
In this regard, a PHEIC declaration necessitates the WHO to authorise the allocation of resources from its ‘Contingency Fund for Emergencies’ and, in parallel, it triggers the World Bank to allocate funds from the ‘Pandemic Emergency Financing Facility’, created in the aftermath of the 2014-2016 West African Ebola crisis, for the disbursement of additional funding. Both financing mechanisms were already in place before the PHEIC declaration was issued.
To galvanise the more global efforts, especially in terms of financial support, the WHO’s Director-General has the duty to exhort the support of Member States.
Given how most of the current budget of the WHO is based on voluntary contributions by states and non-state donors.
Despite its being grounded on a binding instrument, the declaration of a PHEIC does not create new international law obligations for WHO Member States. However, the absence of a PHEIC should not be understood in the sense that an outbreak does not warrant further international action.
Even before the current declaration, previous steps had already been taken by international institutions to deal with the crisis.
In pursuit of containing Ebola spread that would affect cross-border movement of people, Rwanda’s Minister of Health,
Dr. Diane Gashumba, and her Congolese counterpart, Pierre Kangudia Mbayi, recently agreed to set up a joint roadmap for cross-border activities aimed at combating the Ebola virus disease (EVD) epidemic.
Currently, it is estimated that more than 1,600 people have died of Ebola in the DRC since the outbreak began in August 2018. An experimental Ebola vaccine [VSV-ZEBOV-GP], a measure known as ring vaccination strategy, focusing on immunising those who were or might have been in contact with infected persons remains indispensable.
The writer is a law expert.
The views expressed in this article are of the author.