“We’re In This for the Long Haul”: The End of the Public Health Emergency of International Concern Due to COVID-19

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Last Friday, 5 May 2023, acting upon advice from an Emergency Committee, the WHO Director-General Tedros Adhanom Ghebreyesus declared under Article 12 of the International Health Regulations (IHR) of 2005 that the spread of COVID-19 no longer constitutes a public health emergency of international concern (PHEIC). The emergency had been active since 30 January 2020. While a duration of three years leads to wonder whether this stretches the understanding of “emergency”, it has actually not been the longest-lasting PHEIC since the IHR (2005)’s entry into force. Instead, the PHEIC due to the risk of re-emergence and spread of wild poliovirus is now entering its ninth year, having been first declared on 5 May 2014.

No longer being a PHEIC does not mean COVID-19 is not a pressing problem anymore. The WHO Director-General has emphasized the need for implementing sustainable long-term public health strategies. Gaps in vaccination rates across multiple countries continue to pose a risk of severe infections. Considerable uncertainties remain related to the impact of long-COVID on the global burden of disease for the years to come.

The current post addresses the legal consequences (or lack thereof) brought upon by the end of a PHEIC. It also sheds light upon the persistent lack of concrete and clear-cut criteria for doing so. The underlying premise is that, while input from medicine and public health is essential, a degree of interpretive discretion is inevitable. But a lack of clarity can be problematic for properly preparing against future health threats similar to COVID-19.

When PHEICs Come to an End

The main reason held by the Emergency Committee when recommending that COVID-19 no longer represents a PHEIC was, it no longer meets the requirement of being “an unusual or unexpected event”, as defined in Article 1 IHR (2005). Such argument may be convincing after three years of experiencing the global spread of the disease, and after extensive research about the multiple consequences of infection with all the known variants of COVID-19. But, at the same time, there is no quantitative threshold for determining when an event is no longer “unusual or unexpected”. As explained in the previous paragraph, the spread of wild poliovirus continues to be a PHEIC despite its nine-year duration. The main reason, in this case, is the persistent “risk of international spread” of the disease. The point can thus be made that it lies within the discretion of Emergency Committee members, and ultimately of the WHO Director-General, to interpret when exactly these criteria are met. Aiming for a mathematical threshold marking a before-and-after is a vain undertaking.

Much like the first declaration of a PHEIC due to COVID-19 from over three years ago, the recent declaration of the end of a PHEIC does not entail any before-and-after in the overall legal status quo. As affirmed in previous posts, under the current IHR (2005), declaring a PHEIC by itself does not lead to any new legal obligations, and the same logic applies to declaring their end.

Despite the absence of new binding obligations when a PHEIC is declared, there is an acknowledgement of the role they can play for states, particularly regarding their sovereign interests. Article 12 (2) IHR (2005) currently mandates the WHO to consult with affected states before declaring a PHEIC. If such states are not responsive, the WHO Director-General may proceed to issue the corresponding declarations after 48 hours. Notably, no such requirement exists when declaring the end of a PHEIC. This raises the question of whether States Parties might ever have an interest in an “active” emergency. The traumatizing experience from the West African Ebola crisis of 2014, in which the PHEIC declaration was delayed with dire consequences, comes to mind. But that is, so far, merely a hypothesis. The IHR (2005) is understandably based on the assumption that States Parties are, and have historically been more worried about the negative consequences of an emergency declaration, rather than its end or even total absence thereof. At the same time, the issue of which State Parties should be consulted when declaring that a PHEIC has ended would be difficult to settle. After all, numerous countries are still reporting active cases of COVID-19 – and even those that are not might have simply stopped recording them.

While not carrying legal consequences of their own, PHEIC declarations do have distinctive features. The WHO Director-General has the power to issue temporary recommendations under Article 15 IHR (2005). As they are defined in Article 1 IHR (2005), these are non-binding. But targeted recommendations may not only be issued during emergencies. Indeed, when declaring the end of the PHEIC due to COVID-19, the WHO Director-General has, for the first time, summoned a Review Committee to consider the possibility of issuing standing recommendations under Articles 16, 17 and 50 IHR (2005).

Temporary and standing recommendations have the same legal pedigree. This is because, under Article 43 IHR (2005), both of these types of recommendations create a yardstick upon which measures adopted by States Parties restricting international travel and trade will be assessed. Should national authorities go beyond, or downright disregard the WHO´s recommendations and restrict travel or trade under the justification of protecting against the potential cross-border spread of a disease, they would need to notify that fact and provide an additional rationale for doing so. If there are no recommendations to speak of, States Parties are nevertheless obliged to adopt measures that are not “more restrictive of international [travel and trade] and not more invasive or intrusive to persons than reasonably available alternatives” that can protect health.

It is, however, noteworthy that in his declaration of 5 May 2023, the WHO Director-General issued temporary recommendations once again when declaring the end of the COVID-19 PHEIC. According to one of these recommendations, States should “continue to lift COVID-19 international travel related health measures”, and “not require any proof of vaccination against COVID-19 as a prerequisite for international travel”. Formally, these do not have the status granted by Article 43 IHR (2005), considering that temporary recommendations must be attached to a PHEIC declaration. This does not detract, of course, from their value qua reasonable policies. As explained above, travel restrictions may be disproportionate regardless of whether the WHO has issued temporary recommendations or not. From a public health policy perspective, the effectiveness of travel restrictions to mitigate COVID-19 at this point in time can, and should certainly be questioned.

Open Legal Questions for a Post-Emergency COVID-19

Beyond the fact that the spread of COVID-19 is no longer an active PHEIC, a number of key legal issues remain unsettled, and others are up for review. In the ongoing process to amend the IHR (2005), an open issue is whether the WHO’s emergency declarations, as such, are suitable governance tools in their current formulation. Proposals have been put forward to modify PHEICs, including to create a type of mid-level alert – which, in turn, has been criticized elsewhere –; the possibility to remove the requirement of pre-consultation with affected states before declaring a PHEIC; and even a potential change in the legal nature of temporary recommendations, making them binding. In its report, the Review Committee on Amendments to the IHR (2005) has warned of the legal conundrums related to these proposals.

On top of this, a potential declaration of a pandemic, currently foreseen in Article  15(2) of the zero draft for a pandemic convention, agreement, or other legal instrument (CA+), might create a multi-layered state of affairs. The term “pandemic”, which is not a category enshrined in the IHR (2005), has been used by the WHO Director-General to refer to COVID-19 since 11 March 2020. This term arguably continues to be applicable, as the virus has a literally global presence. While PHEICs should certainly be distinguished from pandemics, the criteria for the latter would similarly be open for interpretation. Indeed, when then-WHO Director-General Margaret Chan declared on 10 August 2010 that the spread of H1N1 influenza was no longer a “pandemic”, she noted that the virus would remain to circulate in a seasonal fashion. No precise criterion was offered as to when exactly the shift from pandemic to non-pandemic times took place. 

Consequently, much conceptual uncertainty remains with the actual role and value of PHEIC and pandemic declarations issued by the WHO. This uncertainty is troubling because reaching an agreement between states on how to respond to future threats needs to begin by accurately knowing what it is they are facing. Beyond their legal effects, the communicative impact of these declarations ought to be taken seriously.

In conclusion, the end of a PHEIC that changed the world in so many ways should not lead to complacency on where the international community currently stands. Pandemic fatigue has already set in across countries for some time. But a return to the pre-COVID era is not feasible in the foreseeable future. Recurring waves of infection may continue to occur, with varying degrees of severity. The possibility of witnessing new dangerous variants has not been fully ruled out. Should the continuing spread of COVID-19 give way to “unusual and unexpected developments”, declaring a PHEIC once again cannot be fully ruled out and would be legally feasible. Beyond these developments, as posited when the term “endemic” was initially used to refer to COVID-19, the persistent spread of the virus will continue to strain healthcare systems, which are barely starting to recover today. And in terms of international lawmaking and reform, the fate of negotiations on a new pandemic convention (CA+) and amendments to the IHR (2005) is still uncertain. After literally millions of deaths and the lingering burden of disease caused by COVID-19, international law on pandemics has a tall order to fill. Providing tools for conveying the nature and of future health threats if and when they happen would be a small, but positive step forward.

Photo: Manaus, Amazonas, Brazil (17 September 2020), IMF / Raphael Alves.

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