By Thomas Mulder, LLB

The Ebola virus outbreak in West Africa has caused over 11,000 reported deaths. The World Health Organization (WHO) has been widely criticized for its late response to the outbreak and has pledged to reform its organization. However, many in the field of global health law remain deeply concerned by the struggles of the international community to find effective ways to prevent spread of disease. From a legal perspective, the Ebola crisis raises the question what obligations states and WHO have under international law to prevent (international) spread of contagious disease and whether these rules are effective in reality.

What are the rules under international law to prevent spread of contagious disease?
In 2005, the World Health Assembly – the decision-making body of WHO – adopted the International Health Regulations 2005 (hereafter: Regulations). These Regulations are legally binding for all WHO members and are not subject to ratification (see Article 22 WHO Constitution). One of the objectives of the Regulations is to prevent international spread of contagious disease. To achieve that goal, a ‘chain of responses’ is created, that should enable states to effectively combat any outbreak. The first phase in the chain is a preliminary one: detection of outbreaks. Detection is a responsibility of states, meaning that states are obliged to establish their own functioning detection system. If there is a “significant risk of international spread”, states must proceed to the second phase of the chain and notify WHO of the situation. In phase 3, WHO will verify the information it received, and may, in the fourth phase, inform states and give advice on further action. It must be stressed at this point that states are primarily responsible to combat the spread of disease and should provide aid to affected states in need. WHO is, in this respect, merely an international platform and has, at best, a coordinating role. In very urgent and severe cases, however, WHO may declare a ‘Public Health Emergency of International Concern’ (PHEIC), entering the fifth and last phase of the chain. Such declaration is a global alert that stresses the urgency of the situation and enables the Director-General of WHO to issue temporary (non-binding) recommendations. Nonetheless, states remain primarily responsible to take action.

Did the Regulation’s chain of responses work during the Ebola outbreak?
Considering the large scale of the Ebola crisis, one might presume that the system, envisaged in the Regulations, blatantly failed. Is that a too cynical assumption or a reasonable conclusion? In this context the following points must be made. First of all, it took the Guinean government more than three months to detect and identify the Ebola virus. The Ebola virus frequently appears in Central Africa, but had never been found in West Africa. By the time the Guinean government reported the first cases to WHO, the virus was already widely spread. Second, the system stalled again in phase 4. The ‘hardest hit’ states (Guinea, Sierra Leone and Liberia) were unable to isolate the virus and prevent further (international) spread. That is in itself not surprising, considering that these countries are placed at the bottom of worldwide health care rankings. Furthermore, non-affected states barely provided aid to the hardest hit states and WHO was unable to rally the troops and send the necessary technical, logistical and financial assistance. Third, WHO refused to declare a PHEIC, which lead to confusion and frustration. Finally, under immense pressure, WHO declared the Ebola outbreak a PHEIC eight months after the outbreak. Unfortunately, the declaration did not have the expected effects: the world was still vast asleep. It seems that the spread to Europe and the USA and an unprecedented Security Council resolution, in which for the first time in history a disease was called a “threat to international peace and security”, compelled states to take action.

Has the regime of the Regulations failed?
It is save to draw the conclusion that the system designed in the Regulations is very weak. I believe three main weaknesses can be identified. Firstly, many states do not comply with the Regulations. Some states are not able to implement an adequate detection system, other states seem to refuse to comply for political reasons (e.g. Indonesia, which refused to share data on the H5N1-virus in 2006). Secondly, WHO does not have enough funds to respond effectively and adequately to acute health crises. After many budget cuts, WHO cannot provide additional aid to affected states and help deescalating crisis situations. Lastly, it is unclear what constitutes a PHEIC, which leads to inconsistency, confusion and frustrations. But does this mean that the framework has failed? No, it is broken, but it can be fixed.

How can we fix the Regulations?
The problem of non-compliance has two elements. First, there is no effective monitoring system on implementation of the Regulations. This could change by creating an independent committee of experts that will review implementation. This allows for state specific advice and strengthening implemented systems taking new (medical) developments into account. This will lead to a more flexible approach on implementation of sufficient public health measures and detection systems. Second, developing states do not have the necessary (financial) resources to comply. I suggest to create an involuntary global fund to support developing states financially with implementing the Regulations. Inspiration is drawn from the Framework Convention on Tobacco Control, which has provisions for the creation of a voluntary global fund to assist developing countries on implementation. However, due to its voluntary character, the fund was never created. Therefore, participation in the proposed global fund for implementation of the Regulations must be mandatory, which is justified by a shared global interest in having effective means to combat outbreaks. Both proposed solutions may close the compliance gap.

The second weakness is a lack of funds in the international community to respond effectively and adequately to the global health crises. States are primarily responsible to prevent spread and take action. However, in reality we witness uncertain situations in which no state is willing to take a leadership role. This vacuum can be a tremendous loss of valuable time, what might have grave consequences. Therefore, I believe there should be a global emergency fund that can be used to quickly roll out missions to prevent escalation. After the outbreak of the H1N1-virus (Swine Flu) in 2009, a review committee recommended a global contingency fund administered by WHO, which could be released during a PHEIC to roll out emergency programs. These recommendations were recently embraced by WHO.

Finally, it remains unclear under what circumstances a PHEIC can be declared. The Regulations merely point out that a declaration should be based on science and not politics, but this does not seem to be consistent. As the term PHEIC allows many variations of interpretation, the term can easily be politicized. In my opinion a consistent choice in a legally binding document should prevail over the interpretation of the leadership in place. Therefore, the Regulations should be clarified on this matter. It should, for example, clarify whether a PHEIC is limited to outbreaks of acute disease or has a broader definition. Nonetheless, I acknowledge that some flexibility is desired, as the definition should not rule out potential health threats which we yet do not know exist.

Lessons for the future
In conclusion, the Ebola outbreak has revealed great weaknesses in the International Health Regulations. Even in our modern, technological advanced society, new threats will continue to challenge our efforts for a healthier world. That means that we need to learn our lessons and strengthen the Regulations after every outbreak. If we keep improving the system, we can be better prepared for future outbreaks. After all, no one knows when and where the next outbreak will hit, and, for all we know, it might be as bad as a Hollywood virus-disaster movie.