PANDEMIC: BUILDING A LEGAL CONCEPT FOR THE FUTURE.

• Author: Villarreal, Pedro A.

1. INTRODUCTION

   At a press conference on February 26, 2020, the World Health Organization (WHO)'s Director-General, Tedros Adhanom Ghcbrcyesus, warned that the word "pandemic" was ill-suited to describe the ongoing spread of COVID-19.' He expressed concerns about the fear-mongering effects of using the term. Instead, he urged all countries to "prepare for a potential pandemic." At that moment in time, the disease was already present in all the continents of the world except Antarctica. (2) According to the organization's reports of that day, there were 81,109 confirmed infections and 2,762 confirmed deaths worldwide, with the virus confirmed in 37 countries outside of China. But, technically, according to the WHO, the world was not yet facing a pandemic. Moreover, two days before the WHO Director-General's statement, officials from the same organization had declared the category of a pandemic was no longer being employed as a matter of institutional policy. (3)

   Later, at another press conference on March 11, 2020, (4) the WHO Director-General declared that the conditions had been met to deem COVID-19 to be a pandemic. By then, there were 118,319 confirmed infections and 4,292 confirmed deaths globally. While the number of affected countries had dramatically risen from 38 to 114, the virus' presence in different continents had actually experienced no variation--Antarctica remained free of contagion. It is unclear what exactly triggered the change of status between February 26 and March 11 of 2020 (see Table 1).

   By the second date, the global nature of the disease was undeniable. For all practical purposes, the world was now facing the COVID-19 pandemic. But the WHO Director-General's statement deeming the spread of the disease to be a pandemic brought no discernible legal consequences for the international community of states. It is unclear to what extent it marked a watershed in the chronology of the disease. In fact, the statements described above had been issued more than one month after an initial declaration on January 30, 2020, deeming the spread of the disease then-known as nCoV-2019 as a public health emergency of international concern (PHEIC). (5) As opposed to the term 'pandemic,' a PHEIC is defined in the International Health Regulations (IHR 2005), the main legally binding instrument to "prevent, protect against, control and provide a public health response to the international spread of disease," as stated in its Article 2. (6)

   Despite the pandemic declarations' lack of legal pedigree, multiple national governments later cited it their own national emergency declarations. (7) It thus becomes all the more striking that there is no definition of a pandemic enshrined in any legally binding instrument. (8) A recent report by a WHO Review Committee with the mandate to assess the implementation of the IHR in the pandemic highlighted confusion amongst Member States on the difference between a PHEIC and a pandemic as a salient problem. (9)

   Against such a backdrop of terminological confusion, this essay provides an initial basis for future discussions by individuating the basic elements of the definition of a pandemic for the purposes of international law. Two goals are at stake: the need for providing certainty, on one hand; and a sufficient flexibility for grasping future events the dimensions of which are currently unforeseeable, on the other hand. A legal definition of a pandemic could fulfill both a descriptive role by providing a tool for framing events such as the global spread of a disease, as well as a normative one by triggering specific acts by the international community of states expressed in legal obligations.

2. PANDEMICS AND PHEICS: THE SPECIFIC VS. THE GENERAL

   The current contribution makes a distinction between the general use of the term "pandemic" and its institutional usage by the WHO. The focus is on the latter, in order to underscore how its use by a qualified actor with a specific authority for doing so, i.e. the WHO Director-General, can lead to a set of legally relevant consequences.

   The terminological challenges related to formulating a definition of pandemic are well-known in debates within legal theory. As posited by H.L.A. Hart when discussing "borderline cases," there are facts that may fall within a penumbra regarding the application of general rules to specific cases . (10) Making a definition more concrete for the sake of clarity may come at the expense of leaving events which do not follow pre-established patterns beyond its reach and scope.

   Even though it is vague, 'pandemic' is not an essentially contested concept." There are generally no opposing camps with alternative definitions, but rather there is a relative agreement on what types of events would qualify as such. One common denominator is that the term is meant to convey, under all circumstances, the global geographical spread of a disease. (12) The difficulties lie in ascertaining from which point onwards transmission is considered to be 'global.' Resorting to specific numerical values might be ill-suited. As seen below, past attempts at creating pandemic phases showed considerable limitations.

   Aside from the geographical dimension, scientific consensus amongst the medical and public health communities on the necessary elements of a 'pandemic' is conspicuously incomplete. (13) Existing usages arc not based on quantitative thresholds, but rather to qualitative components like 'sustained transmission,' open to interpretations of when it occurs. (14) This partly explains why the challenge of formulating a clear-cut definition begins in the fields of medicine and public health. Any future legal definition of a pandemic must have a solid epistemic basis stemming therefrom.

   In light of the above, the main difficulty lies in framing an operational definition of 'pandemic', i.e. one having performative effects when it is uttered. The WHO currently includes an institutional definition within its non-binding influenza guidelines, where a pandemic is considered to be present when "an influenza A virus to which most humans have little or no existing immunity acquires the ability to cause sustained human-to-human transmission leading to community-wide outbreaks. Such a virus has the potential to spread rapidly worldwide, causing a pandemic." (15) The definition is based on experiences from the past, leading to an estimation that the influenza virus was considered to be, as recently as in 2019, the likeliest source of a pandemic event. (16)

   By contrast, PHEICs are defined in Article 1 of the IHR as "an extraordinary event which is determined...(i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response."

   While not all PHEICs are pandemics, all pandemics would be PHEICs. The relationship shows how the two definitions fulfill overlapping, yet distinct goals. Declaring a PHEIC is aimed at conveying a message to the international community, namely that a disease-related event occurring in the territory of one State may pose a risk to other states. Therefore, a disease outbreak may constitute a PHEIC even though, at a given moment, there is no active cross-border spread. This is enshrined in the definition under Article 1 of the IHR 2005 and has been a criterion used to denote previous emergencies. (17) Consequently, these declarations have an ex ante orientation, namely to tackle outbreaks before they acquire an international dimension or the extent of their consequences is fully known. (18)

   Conversely, the WHO's existing definition of a pandemic fulfills a descriptive purpose, as it communicates the active presence of a communicable disease in multiple regions of the world. It is an assessment of ongoing facts, rather than a risk-based analysis. Therefore, the definitions of a PHEIC and a pandemic operate at different conceptual levels. Despite their not leading to a change in the legal status of its addressees, both of these declarations currently have performative effects, albeit unclear ones. They hold sway over national authorities, in so far as they become aware of the existence of a threat not constrained to a specific region of the world. On this point, the literature on global governance shows how the effects of legally non-binding acts can, at times, lead to more tangible consequences than those of binding ones. (19)

   In light of the above, both PHEICs and pandemics are plagued with conceptual vagueness, directly affecting their application to particular cases. (20) Another consequence is the conferral of a higher degree of discretion upon the one person with the authority to declare them: the WHO Director-General. In the case of PHEIC declarations, an Emergency Committee, an ad hoc body in the WHO, must be summoned before emitting them. Committees advise the WHO Director-General in deciding, inter alia, whether the elements of a PHEIC have been fulfilled. (21) Even if an Emergency Committee is summoned, it does not necessarily lead to a PHEIC declaration. (22) This is also a consequence of conceptual vagueness.

   Moreover, in order for an IHR Emergency Committee to be summoned, there must be at least a prima facie presumption that events reported to the WHO might constitute a PHEIC. (23) If the WHO Director-General does not wish to summon the Committee, no further action is taken. The West-African Ebola crisis of 2014 is a case in point, given how disagreements on the actual nature of events in Guinea, Liberia and Sierra Leone led to a delayed response. (24) This does not mean other bodies play no role in the process to declare a PHEIC. The WHO's other principal organs, the World Health Assembly and...