AuthorGeorge, Madaline

A new and deadly virus emerged in Wuhan, China, in late 2019. This easily transmissible novel coronavirus quickly spread throughout the region and, by mid-January 2020, the virus began to spread beyond its country of origin. The World Health Organization (WHO) was first informed of the illness on December 31, 2019. One month later, on January 30, the WHO declared a Public Health Emergency of International Concern (PHEIC) in response to what was known to be SAR-CoV-2, the virus which causes COVID-19. A PHEIC is the highest level of alert available under the International Health Regulations (IHR 2005), the WHO's framework for responding to emerging diseases.

Governments responded to this threat with varying degrees of seriousness and effectiveness. At the time of this writing, COVID-19 has been identified on every populated continent, resulting in more than 100 million infections and 2.1 million deaths. (1) International travel has been curtailed, millions of people continue to live under public health restrictions, and economic activity has dramatically slowed. Several vaccines have been developed in record time, but estimates indicate that worldwide inoculation will not reach levels sufficient to return to "normal life" until at least 2022. (2) The virus - and new variants - continue to spread with rapidity and morbidity, highlighting the need for international legal cooperation in the face of a common disaster.

The WHO plays a critical role in how States and the international community handle global health emergencies. COVID-19 has tested the effectiveness of the IHR 2005, the only binding legal instrument regarding international disease prevention and control. The IHR 2005 were drafted in part as a response to the 2003 emergence of SARS and are generally agreed to be an improvement from their predecessor. (3) Yet while the IHR 2005 include a process for declaring a PHEIC and impose requirements upon States, their application and implementation are insufficiently robust. The coronavirus crisis and States' attacks on the WHO itself have compounded these challenges.

Under its Constitution, the WHO, representing its 194 member States, acts as "the directing and coordinating authority on international health work." (4) During a global health crisis, the WHO monitors and supplies information on the disease and its spread, helps countries prepare their health systems to identify, track, prevent, and treat the disease, and plays a key role in the search for a treatment or vaccine. It works in collaboration with its Member States and has little autonomous authority of its own, relying on national governments for funding, access, and implementation.

The IHR 2005 require States to cooperate with the WHO and with each other by tracking health events on their territories, notifying the WHO if they reach a certain threshold of seriousness, providing detailed information to each other and to the WHO, and implementing a range of responses, including achieving a core set of public-health capacities.

The IHR define a PHEIC as "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." (5) The WHO Director-General and an Emergency Committee are responsible for declaring a PHEIC, which allows the WHO to issue "measures that can address travel, trade, quarantine, screening, [and] treatment," as well as determine best practices. (6) Six PHEICs were declared between 2009 and 2020, each accompanied by Temporary

Recommendations. (7) There is "no mathematical formula [or] algorithm" for a pandemic declaration, (8) nor docs this declaration trigger new funding, protocols, or regulations. (9)

Throughout the COVID-19 pandemic, the WHO has faced criticism for its handling of the outbreak. Critics argue that the WHO was too late in declaring a PHEIC and too lenient in its dealings with Chinese authorities. (10) Many scholars of international law and global health pointed to systemic weaknesses in the IHR 2005." Criticisms range from a lack of funding to vague language in the IHR and WHO Constitution, and many experts suggest that the IHR needs improvement if they are to adequately protect against future pandemics. As Professor Gian Luca Burci, former legal counsel to the WHO, has noted, the "criteria [for a PHEIC] are open ended and difficult to be framed in purely legal terms," (12) suggesting that more precise regulations are required. Likewise, in the second meeting of the IHR Emergency Committee regarding the outbreak of COVID-19, the Committee advised that the "WHO should continue to explore the advisability of creating an intermediate level of alert between the binary possibilities of PHEIC or no PHEIC, in a way that docs not require reopening negotiations on the text of the IHR...

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