Making international health regulations work: lessons from the 2014 Ebola outbreak.

• Author: Lee, Tsung-Ling
• Position: Abstract through II. The World Health Organization, p. 931-970

ABSTRACT

Many legal scholars believe that the lack of enforcement mechanisms provided by the International Health Regulations (IHR) in part explains the slow containment of the deadly Ebola virus disease outbreak in West Africa in 2014. In contrast, some global health practitioners deem funding for global health emergencies as a key remedy to the ineffective international infectious disease control regime. Such belief underpinned the creation of the Pandemic Emergency Facility (PEF), the World Bank's new financing initiative, aiming to finance global disaster response. Some commentators hope that the establishment of the PEF will resuscitate international interest in global health security and cooperation. Although current discussion touches upon how to integrate the PEF with the existing international infectious disease control regime, much remains unclear about how the PEF will relate to the IHR operationally and normatively. Relatedly, legal scholars and global health practitioners continue to talk about IHR enforcement and global health emergency funding as two different things, without exploring how the latter can incentivize the former.

Starting from the IHR as a pillar of global health security, this Article focuses on strengthening the IHR enforcement mechanism--thus far overlooked in the current discussion--vis-a-vis the PEF. It also argues that such linkage is important in ensuring consistent, rapid global health emergency responses. Drawing on lessons from the 2014 Ebola outbreak, the Article demonstrates that the proposal is normatively desirable and politically feasible. The Article makes a timely intervention, as the PEF has tremendous potential in shaping the international infectious disease regime, creating new opportunities and anxiety simultaneously.

TABLE OF CONTENTS I. INTRODUCTION A. Definitional Matters 1. Global Governance for Health 2. Failed or Failing State 3. Compliance B. Background: The 2014 Ebola Crisis in West Africa II. THE WORLD HEALTH ORGANIZATION A. The WHO's Normative Visions B. The WHO's Constitutional Functions C. The International Health Regulations III. INTERNATIONAL FINANCIAL INSTITUTIONS AND THE GLOBAL GOVERNANCE OF HEALTH IV. THE PANDEMIC EMERGENCY FACILITY AND THE LINKAGE WITH THE IHR A. The Pandemic Emergency Facility B. The Proposal: Informal IHR-PEF Linkage C. International Infectious Disease Control and Risk Governance D. Potential Challenges to the IHR-PEF Linkage V. CONCLUSIONS: ADVANCING GLOBAL HEALTH SECURITY I. INTRODUCTION

Many legal scholars believe international law is a pillar of the maintenance of global health security and cooperation. This belief is reflected in the extensive law-making power granted to the World Health Organization (WHO), (1) a global public health agency. Yet, in the past decades, and most recently during the Ebola virus disease (sometimes abbreviated "EVD," but referred to here more colloquially as "Ebola") outbreak of 2014 in West Africa, the consistently poor performance of the WHO in the global policy realm of infectious disease control shattered that expectation markedly. Indeed, at the most recent opening of the annual World Health Assembly (WHA), German Chancellor Angela Merkel made clear that the WHO's response to the 2014 Ebola epidemic was nothing less than catastrophic. (2) Chancellor Merkel's sharp criticism reflects a widely held sentiment within the international community because the delayed WHO response to the epidemic had resulted in 11,300 deaths and 28,601 confirmed cases, as of December 1, 2015. (3) Many infectious disease experts believe that, had the WHO responded promptly, such human devastation could have been averted. (4) Likewise, many commentators noted that the International Health Regulations (IHR), (5) which provide the international legal architecture for global health security, have contributed little to enhancing international cooperation. While many reasons explain why international infectious disease regimes remain ineffective, (6) scholars generally agree that the lack of enforcement mechanisms provided by the IHR renders the instrument, at best, symbolic. (7)

In response to the widely recognized WHO leadership failure, proposals outlining more responsive mechanisms both inside and outside the WHO governance framework have emerged. The World Bank, for instance, is developing a global Pandemic Emergency Facility (PEF) in collaboration with the WHO, private sector health companies, and nongovernmental organizations (NGOs). (8) Chancellor Merkel, in contrast, is advocating for an autonomous body with an independent budget within the WHO. (9) In response to the wave of universal criticism on its poor performance, the WHO announced the creation of a global health workforce reserve and a new $100 million contingent fund, aimed to facilitate rapid deployment and mobilization of medical staff and resources during the early phase of infectious disease control. (10)

At a glimpse, the wave of initiatives and programs aimed at strengthening global health security is, no doubt, a welcome, if not overdue exercise. In particular, international infectious disease control tends to occupy a place low on the political priority list once the crisis is perceived to be over. However, at the governance level, the mushrooming of new financing initiatives outside of the WHO governance framework is also at risk of undermining the WHO's normative authority, which is necessary for commanding and coordinating international responses during global health crises. While the wave of proposed initiatives reflects a general discontent with the WHO, the world is also at a critical juncture where the global infectious disease regime is undergoing dramatic transformation. The emerging Zika virus outbreak again demonstrates the necessity of a robust global infectious disease control regime. (11) More importantly, from the viewpoint of human rights, strengthening IHR enforcement would help the most vulnerable, most in need, populations. Scholars argue that, in cases where impoverished, ineffective, or failed states face disproportionate burdens in the provision of health services, as in the 2014 Ebola outbreak, a better-coordinated WHO would, and should, help close the gap. (12)

Equally as many legal scholars and political scientists have noted that the extent to which the WHO fulfills its constitutional mandate is a measure of its institutional legitimacy; a more robust IHR would also empower the WHO. Yet the emerging plethora of new actors and initiatives occupying the global health landscape could complicate the current legal order, fracture the already fragmented global governance of health, and inadvertently weaken future international response to infectious disease control. On the contrary, the emerging initiatives signal a reawakening of global interest in international health security; if these initiatives are properly coordinated and integrated within the existing system, they could have an amplifying effect, minimizing potential harms on the affected population.

In this context, the PEF, which will be administrated by the World Bank--a historical rival of the WHO--is a promising financing initiative that will transform the global infectious disease regime. (13) The PEF builds on the notion of risk pooling, which would help create a new market for insuring global epidemic and pandemic risk. (14) While the PEF could channel the funds necessary to finance efforts in containing global epidemic outbreaks, if the PEF is not properly integrated with the existing infectious disease control regime, it could risk further undermining the coherence of the regime. Equally concerning is one proposal currently under consideration with the PEF that aims to link the level of insurance premium to a country's preparedness, as measured against the benchmarks set by the WHO's IHR. (15) While it is true that the uneven progress in strengthening public health capacities limits the effectiveness of the IHR, the proposed linkage would likely place a disproportionate burden on failing or failed states, whose inabilities to develop the core capacities required under the IHR are often complex.

This Article is an effort to move the dialogue beyond financing global health emergencies and toward creating a more equitable international infectious disease control regime. Instead of engaging in a normative inquiry about what makes a more equitable regime, the Article engages in a policy-driven inquiry into how to bring that about and makes concrete recommendations. Specifically, the Article draws attention to the IHR as a building block of a robust, responsive, international infectious disease control regime. The Article also demonstrates why empowering the WHO with (quasi-) enforceable power over the IHR is essential in creating a more equitable international infectious disease control regime. Instead of seeing the ascending influence of the World Bank as a potential threat to the normative authority of the WHO, as a channel to perpetuate the existing asymmetrical power structure within the international legal system, or as a potential source for causing further fracturing to the global health landscape, this Article highlights the potential, and mutually beneficial roles the World Bank and the WHO could play in the realm of global health security. The Article takes a pragmatic view and proposes an informal linkage between the IHR and the PEF to strengthen the compliance of the former. Specifically, the Article draws attention to the World Bank's unique expertise in mobilizing multisectorial financing, and argues that the World Bank's financial clout could be used as leverage in enhancing the IHR's compliance rate, while taking into account the varying capability of state parties to comply with the IHR.

Drawing on the respective institutional strengths of both organizations, the Article demonstrates that linking the PEF with the IHR is a...