Public International Law and the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo

On 17 July, 2019, the World Health Organization (WHO)’s Director-General declared, under Article 12 of the International Health Regulations (IHR), that the Ebola outbreak in the Democratic Republic of Congo (DRC) 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 aftermath of the PHEIC declaration has given way to questions about what exactly its implications –legal and otherwise– are. Some of the general features of PHEICs are described elsewhere. In turn, this post provides a closer look at the underlying legal regime of the IHR, with an emphasis on provisions related to the declaration of a PHEIC. Afterwards, a brief account of the current situation in the DRC Ebola outbreak is provided. Lastly, some of the potential consequences, legal and otherwise, of a PHEIC declaration are discussed.  

The Legal Regime of PHEICs

The IHR were approved at the 58^th 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 60a Constitution of the WHO). Regulations adopted under this procedure become binding for all WHO Member States, with the exception of those which explicitly “opt out”. The IHR entered into force in 2007, and are currently binding for all 194 WHO Member States and Liechtenstein.

Article 1 IHR defines a PHEIC as:

“…an extraordinary event which is determined, as provided in these Regulations:

• to constitute a public health risk to other States through the international spread of disease and
• to potentially require 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(s) party(ies) affected by the public health event.

The legal mandate of the Emergency Committee consists of recommending the Director-General on whether an event is a PHEIC. As discussed here and here, the Director-General still has the discretion to decide one way or the other. Nevertheless, disregarding the advice of the Emergency Committee would amount to political brinkmanship. If the response is enhanced as a result of a PHEIC declaration against the advice of the Committee, it could lead to a boost in the confidence towards the WHO, and specially its Director-General. But, if the aftermath is considered to be negative, a decision bypassing –or downright disregarding– the Committee’s advice could have dire political consequences for the Director-General, and possibly also legal ones for the WHO.

In terms of political repercussions, the WHO Director-General could be subjected to a negative report by an IHR Review Committee, with a mandate under Article 50 IHR. These reports are presented at the World Health Assembly, where Member States participate. It could lead to critical resolutions. Given how most of the current budget of the WHO is based on voluntary contributions by states and non-state donors, a detriment in its reputation as a sound technical agency could also have financial consequences. It has happened before.  

As for the legal consequences for the institution in case a PHEIC is deemed by an affected state to have been declared erroneously, Article 56(5) IHR foresees the option for states to challenge the WHO at the World Health Assembly. However, there is no specification of the available range of outcomes. Moreover, the International Law Commission’s Draft Articles on the Responsibility of International Organizations are still not in force. Lastly, the negative consequences of a PHEIC would not constitute an internationally wrongful act per se, as long as the procedural requirements were followed –that is, convening an Emergency Committee, despite its advice not being heeded. A legal claim by an affected state in this context would have scarce chances of succeeding.

A PHEIC decision requires, first and foremost, the assessment of epidemiological information. Article 1 IHR includes as one of the elements of the definition of a PHEIC “a public health risk to other States”. There is an explicit reference in Article 9(1) IHR to the obligation to assess events in accordance with “established epidemiological principles”. Otherwise, it is not specified how a risk assessment by the Emergency Committee is to be undertaken, beyond a list of possible scenarios in Annex 2 of the IHR. Given how the corresponding criteria for declaring PHEICs may vary on a case-by-case basis, there is no comprehensive blueprint for its application in future cases. For instance, discussions taking place within the meetings of the Emergency Committee are not open to the public. Only the final outcome of the meeting is published. As posited elsewhere, such a “black box”-style process makes it more difficult to ascertain which epidemiological data was taken into consideration, or how and why the requirements of the IHR have been interpreted in a specific manner.

Despite its being grounded on a binding instrument, the declaration of a PHEIC does not create new international law obligations for WHO Member States. This can give leeway to states to react disparately. Nevertheless, as per Articles 15 and 48(1)(c) IHR, the WHO Director General may issue temporary recommendations. Article 1 defines them as “non-binding advice“. Beyond the framing and certain procedural issues (i.e. monitoring), it is unclear to what extent advice given after a PHEIC in the form of temporary recommendations will have more or less weight than non-PHEIC advice.

All of the above makes it difficult to provide a legal account of PHEICs. At the outset, disregarding temporary recommendations cannot lead to international responsibility for wrongful acts by itself. This does not mean temporary recommendations do not have legal weight. Rather, the analysis requires resorting to a different theory, namely one of relative normativity. By looking beyond the binding/non-binding distinction, different avenues for assessing the legal relevance of temporary recommendations become available.

Furthermore, differentiating advice under Articles 15 and 48 IHR from other types of advice by the WHO also requires different analytical tools. Given their non-binding nature, compliance is not to be understood as states wishing to avoid incurring in legal responsibility. Rather, other factors, such as the WHO´s reputation as an organization yielding technical expertise come into play.. Assessing reputation requires resorting to political science.

The 2018-2019 Ebola Outbreak in the DRC as a PHEIC

On 8 May, 2018, authorities from the Democratic Republic of Congo (DRC) notified the World Health Organization (WHO) of the presence of the Ebola virus in Equateur Province, which lies in the country’s Northwest. The situation worsened when a second outbreak took place in the North Kivu province, this time to the Northeast of the country. The province is adjacent to Uganda and Rwanda, heightening the risk of cross-border spread.

Unlike in the case of Guinea, Liberia and Sierra Leone during the Ebola crisis of 2014-2016, this was not the first time the DRC had faced an outbreak of the virus. However, the spread of the virus has been sustained for one year. The WHO Director-General had already convened an Emergency Committee on four occasions. Nevertheless, the Committee recommended the WHO Director-General not to declare a PHEIC, a fact which had already led to experts in the field to issue a call to reconsider. States’ disregard of temporary recommendations in the past had a dissonant effect in the Emergency Committee’s decision-making. The specters of trade restrictions implemented during the 2009 H1N1 pandemic influenza, and of travel bans imposed throughout the 2014-2016 Ebola crisis, both taken against the WHO’s advice, loomed large. In fact, some travel restrictions have already been imposed the DRC after the PHEIC was declared. But, ultimately, these are extra-IHR considerations for deciding whether to issue a declaration or not. Sensible as it may be in terms of policy considerations, circumventing the legal components of the definition of PHEICs undermines the overall value of the IHR´s provisions.

Status updates are continuously provided by the Ministry of Health of the DRC and by the WHO. At the moment of writing, there have been more than 2,600 probable and confirmed cases, including more than 1,750 deaths. For months, epidemiological reports have shown fluctuating spikes in the spread of the virus, as visible in the WHO’s situation reports and in very detailed journalistic accounts. As explained here, there is now an experimental vaccine available (rVSV-ZEBOV). A measure known as ring vaccination, focusing on immunising those who were or might have been in contact with infected persons, has been implemented since before the PHEIC was declared.

Parallel Institutional Developments

The absence of a PHEIC should not be understood in the sense that an outbreak does not warrant further international action. As mentioned above, even before the current declaration, previous steps had already been taken by international institutions to deal with the crisis.

Firstly, the main disruptive element in the medical response is the protracted armed conflict, particularly in the northeastern region of the DRC. As a result, health workers tackling the Ebola crisis are constantly under attack. Notably, on 29 March 2019, the UN Security Council issued Resolution 2463 (2019) invoking Chapter VII of the UN Charter. Herein, the mandate of the United Nations Organization Stabilisation Mission in the DRC (MONUSCO) was extended. Ebola containment measures were included as part of the general humanitarian response to the crisis, although more specific obligations were not created. Moreover, on 23 May 2019, MONUSCO Deputy Representative in the DRC, David Gressly, was appointed UN Emergency Ebola Response Coordinator. The MONUSCO mission previously in place provided additional institutional capacity to the Ebola response.

Secondly, after the initial outbreak was notified by the DRC in 2018, the WHO authorised the allocation of resources from its Contingency Fund for Emergencies. In parallel, the World Bank had also activated 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. This multiplicity also raises questions related to existing overlaps between the WHO, the World Bank and other international institutions.

After a PHEIC – What Gives?

Despite the availability of medical (vaccines) and financial resources, strategies for responding to the outbreak have so far been unable to fully contain it. Now that a PHEIC Declaration has been issued, there is the pending question of what its added value will be in bolstering the international response. The answer lies not only in the IHR´s legal provisions, rather also in empirical considerations.

At this point, the full extent of the consequences of the PHEIC declaration regarding the Ebola outbreak in the DRC is not clear. For instance, the World Bank’s Crisis Response Window explicitly mention the PHEIC declarations as a “trigger”. After the PHEIC was declared last 17 July, U.S. $300 million were disboursed. Nevertheless, the Crisis Response Window has also been activated in other public health crises where no PHEIC was declared, such as in 2017 due to the spread of cholera in Yemen. Hence, the usage of this fund is broader. Further legal analysis is required in order to possibly frame the financial mechanisms of other institutions as a direct consequence of a PHEIC.

Alternatively, the IHR’s provisions can be linked to states’ obligations under the right to health as established in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12.2(c) of this Covenant provides an obligation for states to ‘take steps’ to prevent epidemics. As interpreted by the Committee on Economic, Social and Cultural Rights (CESCR) in paragraph 16 of its General Comment No. 14, the right to health includes obligations to develop ‘strategies of infectious disease control’. Given how the IHR are the specialized instrument in this subject matter, cross-referencing its contents with those of the Covenant in question makes sense. PHEIC declarations could thus be seen jointly with the commitment of states to provide international assistance. Nevertheless, paragraph 40 of said General Comment 14 does not legally frame assistance in strong terms. Declaring a PHEIC would not entail a change in this ‘soft’ dimension of the right to health.

Regardless of the legal consequences of declaring a PHEIC, its political weight should not be overlooked. Controversies taking place both at the institutional level and in the media have focused on how previous PHEIC declarations in 2009 -too soon- and 2014 -too late- contributed to damaging the WHO’s credibility. Even with a lack of immediate legal consequences, PHEICs constitute a salient case of governance through information. As others have put it, it represents a “clarion call” for international cooperation towards tackling a public health crisis. It may also warn other states, besides the affected one(s), about the epidemiological nature of the event, including the risk of trans-border spread. As mentioned above, this may also carry negative consequences for the affected state.

There may be doctrinal disagreements regarding the legal nature of PHEICs and their consequences. But, in sum, their value should not be analysed exclusively on a hard law-centered reasoning. Otherwise, a whole range of policy tools could be left out of the equation. Considering the dire scenario of Ebola in the DRC, any possibilities of marking the difference between an effective response to the outbreak and a delayed one are worth a shot.