On Thursday, after delaying for an extra day of deliberation, the World Health Organization (WHO) decided not to declare the outbreak of pneumonia caused by a new coronavirus, 2019-nCov, a public health emergency of international concern (PHEIC). The International Health Regulations (2005) define 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”. This implies that the situation “is serious, unusual or unexpected; carries implications for public health beyond the affected State’s national border; and may require immediate international action.”
This decision surprised many global health experts, especially when juxtaposed with the urgency and severity of China’s internal response—an unprecedented quarantine of 48 million people. (For the record, WHO Director-General Tedros addressed this, saying “Make no mistake. This is an emergency in China, but it has not yet become a global health emergency.”) Yet is also the second time within twelve months that WHO has failed to declare a PHEIC even though the situation meets the legal criteria set out in the IHR definition. (In 2019, WHO thrice decided not to the declare the Ebola outbreak in DRC a PHEIC before ultimately doing so.) It’s equally puzzling from an international relations perspective, if for no other reason than declaring a PHEIC is the most robust authority granted to the WHO Director-General. Various strands of IR theory hold that when actors have power, or agencies are granted authority, we should expect them to use it.
So what’s going on? In one sense, the 2019-nCov and Ebola decisions highlight one of the perpetually difficult balancing acts confronting WHO—namely, the unavoidable but unadmitted need to balance science and politics.
WHO has always had an uneasy relationship with its political side. As the lead UN health agency, WHO is the chief normative and technical authority in global health. It has carefully cultivated and embraced a (self-)image which attributes its legitimacy to neutral, scientific expertise. If WHO were a 1950s TV detective, its motto would be “just the science, ma’am.”
In reality, though, WHO has a split personality. It is a neutral, scientific authority. But as a global governance organization, it is also inevitably a political actor. In a Chatham House report on the role of WHO, Charles Clift concedes that “politics cannot realistically be wholly separated from the WHO’s technical work.” However, he recommends that the agency make structural changes to separate the two as much as possible, lest “excessive intrusion of political considerations in its technical work  damage its authority and credibility as a standard-bearer for health.”
The process for declaring a PHEIC was seemingly designed to achieve just such a separation. Here’s how it works: the Director-General convenes an Emergency Committee (EC) of experts selected from a roster. The EC hears presentations from affected countries and independent experts and advises the Director-General on whether the outbreak constitutes a PHEIC. If so, they propose “temporary recommendations”—i.e. measures that countries should take “to prevent or reduce the international spread of disease and avoid unnecessary interference with international trade and travel.” The Director-General takes their conclusions under consideration, though formally, the decision to declare a PHEIC and issue temporary recommendations rests solely on his/her shoulders. Informally, it’s hard to imagine a Director-General breaking with the EC. After all, since the EC is the voice of technical expertise, the decision to contravene them would be seen as entirely political.
Digging deeper though, and the process for declaring a PHEIC—like everything else about WHO—is revealed to be a careful balancing act between politics and science. The EC process gathers the world’s best experts in the room, while also ensuring that governments have their say. (The rules even specify that “[a]t least 1 member of the EC should be an expert nominated by a State Party within whose territory the event arises.”) Those discussion occur under a complete lack of transparency—even years later, what is said in meetings need never be disclosed to the public. This secrecy might (might) encourage countries to share information and facilitate honest debate, but it also undermines accountability. Most importantly, the EC provides the Director-General with expert advice, but also with the “cover” to make calls that might be unpopular with Member States. After all, what can the Director-General do but follow the best advice of the best experts? (WHO isn’t even terribly subtle about this, stating “[t]he EC also gives advice on the determination of the event as a PHEIC in circumstances where there is inconsistency in the assessment of the event between the Director-General and the affected country/countries.”)
Thus, on one level, the decision-making process laid out in the IHRs implicitly accommodates the need to balance science and politics. But on an explicit, substantive level, it does not. The decision to declare a PHEIC is conceived and framed as a purely epidemiological decision—and the clearest evidence of this is that the people called on to make that decision are scientists and epidemiologists. In theory, the IHRs don’t mandate the EC to weigh the economic, political, social, and legal costs and benefits of declaring a PHEIC against the epidemiological characteristics of the situation. Nor do they equip it to do so. When he was asked whether the 2019-nCov EC considered the political aspects of their decision, the Chair, Prof. Didier Houssin said as much: “[c]oncerning the political aspects, we have not the competence in the EC to address these very important issues.” (Tellingly, the French word he used, compétence, means both expertise and purview.)
But this statement is only further evidence of WHO’s split personality at work. In reality, Director-Generals and ECs must and do grapple with political and economic considerations. Their mandate to made recommendations to control the spread of disease with the least disruption to trade and travel is inherently politico-economic, because it requires them to consider what justifies infringements on economic activity and human rights. Moreover, countries’ proclivity to respond to a PHEIC declaration by panicking and impose trade and travel restrictions in excess of WHO recommendations means that the Director-General and EC members must consider whether such a declaration might perversely undermine the outbreak response itself. The Ebola EC Chair revealed such thinking when he explained that there was “really nothing to be gained” because countries were already responding appropriately, but “potentially a lot to lose” since it risked border closures and other “restrictive measures at borders which could severely harm the economy in the DRC.” Likewise, Dr. Houssin explained that the 2019-nCov EC balanced concerns about how people in China who are struggling with the virus would perceive such a declaration by the international community against the possibility that the recommendations already issued by WHO “might produce useful results even in the absence of a PHEIC.” And the Director-General was asked to weigh in on the appropriateness of China’s massive quarantine effort, which has significant implications for civil liberties. (His response: “China has taken measures it believes appropriate to contain the spread of coronavirus in Wuhan and other cities. We hope that they will be both effective and short in their duration.”)
The take-away here is that, like it or not, WHO is a political organization as well as a scientific one. Declaring a PHEIC is a political decision, as well as a technical one. The best way to safeguard WHO’s expert authority isn’t by whistling past the politics, but by ensuring that political, economic, and legal expertise is included in EC discussions alongside the scientific expertise.
This is an expanded version of a Washington Post Monkey Cage piece.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.