Zika virus as a Public Health Emergency of International Concern: Insights from previous cases

By Pedro A. Villarreal, Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany,  villarreal(at)mpil.de

See also the following link for a related event: http://www.mpil.de/en/pub/research/areas/public-international-law/ipa/international-health-care.cfm

On 01 February, 2016, the World Health Organization (WHO) declared that the Zika virus outbreak in the Americas is a Public Health Emergency of International Concern (PHEIC). This marks the fourth occasion on which this legal figure has been invoked. The memory of the Ebola crisis in West Africa and its catastrophic results in terms of loss of human lives and economic impact is still fresh. Moreover, the PHEIC declaration on Ebola by the WHO is still active to this date. However, despite both being PHEICs, the Zika virus emergency is a public health event that has to be distinguished from Ebola, as it requires a different approach on several levels.

The legal background of a PHEIC
Another post has already dealt with the legal traits of what is a PHEIC, and its grounds on the International Health Regulations (hereinafter, IHR).

I would only like to add that, although it is itself legally binding, the IHR do not annex any additional legal obligations on States with regard to the declaration of a PHEIC. The obligations to: notify unexpected or unusual public health events (Articles 6-11 IHR); develop core capacities for surveillance and response, as well as designating points of entry (Article 19 IHR); or apply health measures in a transparent, non-discriminatory manner and without excessively restricting travel and trade (Articles 42 and 43 IHR), are all applicable during “ordinary” and “emergency” periods.

However, PHEIC declarations can function as an alert, aiming the spotlight at a particular problem for motivating extraordinary resource allocation.

The emergence of Zika virus in the Americas
The spread of Zika virus throughout the Americas was accelerated due to the out-of-control proliferation of the Aedes aegypti mosquito. While by now it may seem like a truism, such a basic insight distinguishes this disease from the ones that caused previous PHEIC Declarations (i.e. H1N1 pandemic influenza, wild poliovirus and Ebola).

Since Zika is not generally transmitted from person to person, restrictive measures such as quarantines or isolation have not been recommended by the WHO. The measures for containing Zika are obviously different to the population-control response employed for containing Ebola, sometimes apparently with counterproductive results.

Second, the illness deriving from Zika virus cannot be compared in terms of severity to any of the previous diseases that have caused a PHEIC. What makes the spread of this virus so particularly disturbing is not its estimated lethality, insofar as it is considered that its contagion rarely leads to death. Rather, the most pressing issuewould be that there is a possible link between mother-to-child transmission of Zika, and cases of microcephaly in newborns. At the time of this post, this link has not yet been scientifically proven, as it requires further research involving massive financial resources and more time, both of which are scarce.

Third, it could be tragic for institutions to stand idle until the final results of the research on Zika are available. But, at the same time, there are other health prioritiesthat also merit immediate attention and a coordinated international response. Any decision-making in this sense will inevitably favour some problems over others. As the old saying goes: “If everything is a priority, nothing is a priority”.

The Zika PHEIC Declaration in the Latin-American context
The urgent need for more research on the Zika virus is particularly dramatic in Brazil, where there has been an apparent surge in new cases of microcephaly across the country.

Once again, it is useful to emphasize how the Zika outbreak is not like the Ebola crisis in West Africa in many respects. After the perceived underwhelming results of the ad-hoc United Nations Mission for Emergency Ebola Response (UNMEER), another resolution by the Security Council labelling Zika virus as a “threat to international peace and security” for a similar purpose could even be counterproductive this time.

It is also noteworthy that the health systems in the countries where Zika has been more present – such as Brazil – rank very differently in statistical terms to those of the countries most affected by Ebola.

Moreover, the Zika virus emergency has also brought the issue of sexual and reproductive rights of women (https://www.washingtonpost.com/world/the_americas/zika-prompts-urgent-debate-about-abortion-in-latin-america/2016/02/07/b4f3a718-cc6b-11e5-b9ab-26591104bb19_story.html) to the forefront. Several countries in Latin America have a general ban on abortion, or allow it under very specific circumstances. While other commentators advocate a more active role of the WHO in ascertaining the rights of women amidst the Zika epidemic, this is a polarizing debate that reaches far beyond the current outbreak. Could this public health emergency have the collateral effect of pushing national governments to address far-reaching issues they have neglected until today?