A pile of used protective clothing on the floor at a World Health Organization health training centre to deal with Ebola victims in the Liberian capital Monrovia. Photo by Getty Images.
The Ebola outbreak was a disaster for the International Health Regulations (IHR)—the main international legal rules supporting global health security. The outbreak highlighted dismal compliance with IHR obligations on building national core public health capacities. During the outbreak, WHO failed to exercise authority it has under the IHR. Many WHO member states violated the IHR by implementing travel measures more restrictive than WHO recommended under the IHR and that lacked scientific and public health rationales as the IHR requires.
The final report of the Ebola Interim Assessment Panel asserted that ‘the global community does not take seriously’ its IHR obligations. Unfortunately, the panel’s IHR recommendations largely recycled old, ineffective ideas and reflected weak analysis of the outbreak, difficulties the IHR experienced before Ebola, and challenges confronting IHR reform after this crisis.
IHR surveillance and response capacities
The lack of public health capabilities in Guinea, Liberia and Sierra Leone contributed to the outbreak’s severity, which re-focused attention on a long-standing problem—the failure of many WHO members, especially low-income countries, to comply with IHR obligations to build core surveillance and response capacities. The lack of financial assistance to help low-income countries has dogged the IHR since its adoption a decade ago.
The panel recommended a funding plan be submitted to donors and development agencies, but this proposal repeats previous calls for resource mobilization for IHR capacity building, including by the IHR Review Committee in 2011 after the H1N1 influenza pandemic. The panel did not analyze why previous calls went unheeded, how Ebola might produce different results or why IHR capacity building deserves priority over other pressing needs for development assistance.
IHR rules on travel and trade measures
The panel noted that many WHO member states adopted travel and trade measures during the outbreak that violated the IHR, and it recommended that the IHR Review Committee ‘examine options for sanctions’ against such measures. This recommendation reiterates previous proposals for IHR sanctions. The IHR Review Committee argued in 2011 that the ‘most important structural shortcoming of the IHR is the lack of enforceable sanctions’. This argument, and others like it, had no impact, but the panel never examined why prior calls for IHR sanctions went nowhere or how the Ebola outbreak makes sanctions realistic.
The panel referenced the WTO as a precedent for IHR sanctions. However, 20 years of experience demonstrates the WTO’s dispute settlement regime is not a model for strengthening enforcement of other bodies of international law. Unlike the WTO, most international agreements, including the IHR, do not contain enforcement sanctions. The panel does not explain why Ebola would change this entrenched behavior. The panel’s WTO reference is also perplexing because travel restrictions caused the most consternation in the outbreak, and, except in situations not relevant here, WTO rules and sanctions do not apply to restrictions on the movement of people.
Moreover, what happened with Ebola does not support adding sanctions to the IHR. The IHR obligations on travel and trade measures are part of a political bargain, which includes duties on states and the WHO before and during outbreaks. The bargain broke down in the affected West African countries and the WHO, giving states incentives to ignore the rules on travel and trade measures. Such states had no tolerance for being admonished when the WHO and other countries failed to live up to their parts of the bargain. And, these states are unlikely to support including sanctions in the IHR based on the Ebola fiasco.
IHR powers for the WHO director-general
The panel criticized the WHO director-general for not declaring the outbreak a public health emergency of international concern (PHEIC) under the IHR until August 2014. The panel argued the IHR only gives the director-general a ‘binary decision’ of declaring or not declaring a PHEIC. The panel recommended an intermediate level of alert to ‘encourage triggering [the IHR Emergency Committee’s] establishment earlier in a crisis’.
However, the IHR empowers the director-general to draw attention to outbreaks without declaring a PHEIC. The director-general can convene the Emergency Committee to advise on whether a disease event constitutes a PHEIC, an action that alerts the international community of a serious disease situation. The director-general has convened the Emergency Committee nine times concerning MERS, but she has not declared a PHEIC. These meetings have value because they keep MERS prominent on the global health agenda and produce information and guidance for WHO members.
Despite the power to do so and the MERS experience, the director-general did not convene the Emergency Committee before August 2014 when information about Ebola in West Africa warranted this step. The panel’s focus on the PHEIC declaration means it did not illuminate why the director-general failed to raise awareness about the outbreak earlier by convening the Emergency Committee.
The IHR and other Ebola-related reforms
The panel dealt with reforms beyond the IHR, but its recommendations provided no priorities among the proposals made. For example, the panel supported not only funding for IHR core capacities but also increased assessed contributions for WHO, monies for an outbreak contingency fund, resources for a health emergency workforce and a financing mechanism for health emergencies. But, resources are limited, so should building national IHR core capacities be prioritized over developing the WHO’s emergency response capabilities? The panel’s claim that its ‘recommendations are interdependent’ does not obscure its failure to grapple with hard choices Ebola forces on global health governance.
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