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To date there have been six PHEIC declarations, as well as several other health emergencies that have been considered as potential PHEICs. These non-PHEIC events fall into two distinct categories: those considered by an EC, but not declared a PHEIC; and those for which an EC was never convened, but which objectively met the criteria for declaration. In this chapter we examine each of the health emergencies declared a PHEIC in turn, followed by the non-PHEIC events. In doing so we explore how the criteria to declare a PHEIC have been understood and applied by the DG and the EC, as well as the wider considerations that each of these actors might have taken into consideration when fulfilling their functions in respect of a PHEIC under the IHR. In doing so, we demonstrate the overarching findings of this book: that the criteria to declare a PHEIC have been subject to broad interpretation by the EC beyond the legal text, which have been subsequently improperly validated by the DG in accepting the advice of EC. We structure each section first with a background to the context of the health emergency, second with detailed analysis of the apparent PHEIC decision making, third with consideration of the TRs recommended, and finally with analysis of the additional lessons learned about the broader PHEIC, IHR process and global health security. In the analysis we centre on the initial declaration of the PHEIC, and only consider later EC meetings for each disease outbreak if they are a noteworthy change in advice provided or justification.

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The PHEIC mechanism has been fraught with tension since it was first introduced in 2005, with the revisions to the IHR. As this book has shown, the declaration process and decision making underpinning a declaration are the source of many of the inconsistencies regarding the PHEIC.

In the wake of COVID-19, and the widespread failures of the global health architecture to manage disease transmission, many elements of the system will come under review, and likely reform. While it is too early to know the outcomes of such processes, it is likely that the IHR will be revised in some format in the coming years, or be replaced by, or replicate, a similar mechanism through the proposed ‘pandemic treaty’. We write this book to inform such discussions and demonstrate the need to ensure that any power bestowed upon the DG is exercised in a reasonable and proportional manner. In doing so we highlight the following arguments.

First, the PHEIC criteria, as laid out in the IHR, have been inconsistently applied by the DG and the EC throughout the history of PHEIC declarations and non-declarations. To this end, there have been PHEICs declared that do not appear to meet the objective criteria found at Article 1 (and nor did the EC describe these as such). Equally, there have been other events whereby the criteria appear to have been met, but no EC was convened by the DG, or an EC was called, and a PHEIC was not declared.

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Between International Law and Politics

Amid a global health crisis, the process for declaring a Public Health Emergency of International Concern (PHEIC) is at a crossroads.

As a formal declaration by the World Health Organization, a PHEIC is governed by clear legislation as to what is, and what is not, deemed a global health security threat. However, it has become increasingly politicized, and the legal criteria now appear to be secondary to the political motivation or outcome of the announcement. Addressing multiple empirical case studies, including COVID-19, this multidisciplinary book explores the relationship between international law and international relations to interrogate how a PHEIC is declared and its role in how we collectively respond to outbreaks.

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Further to the case studies in the previous chapter, we also sought to understand whether the same inconsistencies were present in outbreaks that were not declared a PHEIC. Within this chapter we consider events for which the DG convened an EC, but which did not result in a PHEIC declaration and second, we also consider events the DG did not convene an EC for, despite the criteria appearing to be met. Considering these events enables us to have a clearer understanding of the use of executive discretion by the DG in regard to the PHEIC, particularly in respect of when an EC is convened, and the relationship between the DG and the EC. We find that multiple DGs failed to convene ECs to consider an event a potential PHEIC, despite the criteria to do so appearing to be met. We further show that the DG is unwilling to go against the advice provided by the EC, even when, as was the case with MERS-CoV, it was apparent that the criteria to declare a PHEIC had been met. This is unusual, given the advice of an EC is one of multiple considerations the DG needs to consider when determining whether a PHEIC declaration is warranted, and goes some way towards demonstrating the extent to which certain aspects of the DG role have been fettered away to the EC.

Middle East respiratory syndrome coronavirus (MERS-CoV) is a zoonotic virus, which is transferred to humans from camels.

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Modern-day international cooperation for the control of infectious disease began in 1851 with the first International Sanitary Conference (ISC). In these meetings, ten European (city) states and Turkey gathered to map out coordinated guidelines to minimize the effects of disease along trade routes, spurred on by a series of cholera outbreaks in the 18th and 19th centuries, which had devastated port cities.1 Importantly, their mandate was to establish mechanisms to reduce disease spread, and to do so with minimal interference with international trade – a balancing act that remains at the very heart of the current IHR. Conferences continued for almost a century, expanding membership of participating states, and topics covered. While the ISCs were progressive in respect to recognizing the need for international cooperation, they were hampered by the inability to agree to terms, and indeed differences in opinion about understanding disease transmission.2 This limited efforts to create common processes for outbreak response; a tension that continues to blight cooperation for health security 170 years later. Despite these setbacks, ISCs did identify key tools for international infectious disease control: the standardization of quarantine at points of entry; the reporting of outbreaks internationally; and public health capacities to respond to an epidemic.3 By the early 20th century, international health cooperation led to the development of intergovernmental organizations for health: the Office International d’Hygiène Publique (OHIP), the Health Organization of the League of Nations4 and the International Sanitary Bureau, the precursor to the Pan American Health Organization (PAHO).5

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On 30 January 2020, Dr Tedros Adhanom Ghebreyesus, Director General (DG) of the World Health Organization (WHO) declared the novel coronavirus outbreak (COVID-19) to be a Public Health Emergency of International Concern (PHEIC), using his authority derived from the International Health Regulations (IHR) (2005). The IHR are the singular binding legal treaty governing global health security. In his press conference, he stated:

We have witnessed the emergence of a previously unknown pathogen, which has escalated into an unprecedented outbreak and which has been met by an unprecedented response…. We do not know what sort of damage this virus could do if it were to spread in a country with a weaker health system. We must act now to help countries prepare for that possibility.1

He continued:

I am declaring a PHEIC over the global outbreak of novel coronavirus. The main reason for this declaration is not because of what is happening in China, but because of what is happening in other countries. Our greatest concern is the potential for the virus to spread to countries with weaker health systems and which are ill prepared to deal with it. Let me be clear, this declaration is not a vote of no confidence in China.2

This statement helpfully highlights the key tensions within the PHEIC mechanism: is the PHEIC a tool of international law to be enacted whenever the objective criteria are met, or a political, normative device within the securitization of health to get governments to pay attention to a health emergency, or does the PHEIC fall ambiguously between the two?

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The PHEIC mechanism is a tool designed to alert the globe to a new or spreading health emergency that may pose a concern to international travel and trade, and for which an internationally coordinated response may be required. In this chapter, we describe the roles of actors and process for declaring a PHEIC, providing clear and separate roles for state parties, the WHO DG, and the EC. In doing so, we lay out two of the central claims of this book. First, that the criteria to declare a PHEIC have been subject to broad interpretation by the EC beyond the legal text and mandate. Second, and linked to the first claim, that the EC is taking into account political considerations in decision making, a prerogative reserved for the DG, and in turn the DG has allowed this to occur. In the concluding section of this chapter, we outline the implications these two claims have on the good governance and legitimacy of the IHR and WHO.

State obligations in respect of the PHEIC declaration are made up of two interlocking components: first, strengthening the national health system to be able to detect and assess emerging health threats rapidly; and second, making timely notifications to the WHO regarding potential PHEIC events. Under the IHR, state capacity becomes an issue of legitimate international concern, outlined at Articles 51 and 13,2 as well as Annex 1,3 and must correspondingly ‘generate accountability and responsibility akin to those arising from erga omnes obligations’.

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Business actors in zones of conflict – especially but not only those in the natural resources sector – have often been conceived of in negative terms: as entities requiring either significant regulation, as epitomized by the Extractive Industries Transparency Initiative (EITI),1 the Kimberley Process,2 and Publish What You Pay Us,3 or significant amounts of ‘hand- holding’, encapsulated in various ‘do no harm’ initiatives such as the United Nations (UN) Guiding Principles on Business and Human Rights (OHCHR, 2011), and the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises on Conducting Business in Weak Governance Zones (OECD, 2006). Slowly but surely, however, the notion that business is an actor requiring a degree of control to mitigate its nefarious impacts has given way to the idea that businesses can serve as ‘active agents of peace, stability and long-term development’ (Miklian and Schouten, 2014: 2). This shift away from businesses as purely negative actors towards their discursive recasting as peacemakers and peacebuilders has been shepherded by the UN ever since former Secretary-General Kofi Annan’s speech at Davos (UNSG, 1999) in 1999, where he called for a ‘new partnership among governments, the private sector, and the international community’ (Tesner and Kell, 2000: xxii).

Since then, businesses have featured prominently on the international stage. In 2004 the UN Security Council established a working group on ‘the role of business in conflict prevention, peacekeeping and post- conflict peacebuilding’ (Deitelhoff and Wolf, 2010: 3); in 2011 a private sector focal point was appointed to the UN Peacebuilding Office (Ford, 2015: ix); in 2012, the UN Secretary-General’s annual report on post- conflict peacebuilding explicitly underscored the need to engage business in the process of sustainable peace for the first time (Ford, 2015: 4); and, John Ruggie’s ‘Protect, Respect, Remedy’ framework focused almost exclusively on the role of businesses operating in conflict-affected and fragile states (Ford, 2015: 67).

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The normativization of peace mediation, particularly by reference to international law, has shaped the field significantly in the 21st century. The United Nations (UN), regional organizations, international financial institutions, states active in the field of mediation, and non-governmental organizations have all adopted codes of conduct, guidelines and policies to provide their mediators with normative and operational guidance (see, for example, UN, 2012; ACCORD and AU, 2014; OSCE, 2014). In addition to articulating new norms of peacemaking, these documents increasingly urge compliance with international law in peace mediation. For example, the UN Guidance for Effective Mediation (UN, 2012: 16) states that peace agreements should ‘respect international humanitarian, human rights and refugee laws’ and that mediation takes place ‘within the framework constituted by … global and regional conventions, international humanitarian law, human rights and refugee laws and international criminal law, including, where applicable, the Rome Statute of the International Criminal Court’. Consequently, as noted by the European External Action Service (2016: 2), ‘those mediating in conflicts today are faced with clearer, more comprehensive, but also more complex, international legal and normative frameworks that attempt to define what is (and what is not) acceptable in negotiations to end armed violence’.

The increasing role attached to international law in peace mediation is driven by the assumption in international policy that conformity with international law and norms contributes to the ‘legitimacy’ of the negotiation process and ‘durability’ of the resultant peace agreements (UN, 2012; ACCORD and AU, 2014). The existence of a normative framework, the assumption goes, provides negotiating parties with a common, objective language to frame their demands and stipulates outer limits that render certain issues non-negotiable.

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Within the last three decades, non-governmental organizations (NGOs) have become established mediation actors. NGO mediators, understood as private actors taking on discreet or public ‘mediative’ or facilitative functions among and between the negotiating parties in a peace process, are increasingly invited by negotiating parties to assist in negotiations towards a peace agreement. As private actors, NGO mediators can take on politically sensitive roles without the same accountability mechanisms required by formal mediation actors such as the United Nations (UN), regional organizations or state representatives. For instance, NGO mediators can mediate informally and discreetly in high-stake negotiations without risking the same level of political blowback if things go awry. As private actors, NGO mediators can engage directly with armed actors that are politically sensitive or proscribed as terrorist organizations. As private actors, NGO mediators are not beholden to the same regulations as formal international organizations bound by state or international organization (IO)-sanctioned counter-terrorism regulations. There is little consensus on what the consequences of this phenomenon are for the theory and practice of international peace mediation. NGO mediators have been lauded both as entrepreneurial ‘mavericks’ redefining the mediation field and as ‘cowboys’ that disregard the field’s normative and political parameters (Martin, 2006).

The rise of NGO mediators coincides with an increasing imperative to promote international norms such as inclusivity, gender equality, human rights and transitional justice in mediation processes (Hellmüller et al, 2015). This normative shift in the mediation field has found mediators increasingly pressured to promote the inclusion of normative parameters at the peace table and in any resulting peace agreements.

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