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.
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.
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.
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.
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
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
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?
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’.
Since 2007, and the implementation of proposals from Lord Carter’s review of legal aid (Carter, 2006), most immigration and asylum application and appeals work is paid for on a system of fixed fees. The premise of the fixed, or standard, fee is that providers are paid a sum which represents the average cost of a case. Some cases will cost more and some less, but overall the payments should roughly equal the work done – the ‘swings and roundabouts’ principle. The fee varies depending on the type and stage of the case, and is set out in regulations (secondary legislation) which are updated periodically. Cases which cost three times the fixed fee will ‘escape’ the fixed fee and be paid at hourly rates, which also vary according to the type and stage of work.
Even before the Carter Review and the LASPO Act (2012), which reduced fees further, Moorhead noted the discrepancy between the government view that the legal aid scheme was generous and practitioners’ arguments that it was a ‘toxic job’ and they could barely survive on legal aid rates (2004:p186). He pointed out the lack of robust data on the operation of firms and not-for-profits working in legal aid, the relationship between legal aid and commercial practice, and how legal aid practices responded to economic changes. He also discussed the increased bureaucracy and surveillance and the passing of administrative costs to the providers even before the fixed fee and the most recent cuts were implemented, which made those cuts more difficult to manage. Still less is known about how barristers manage these issues.
The provider base of publicly funded asylum legal services under contract to the Legal Aid Agency (LAA) consists of solicitors’ firms and not-for-profit organisations of different sizes, business models and cultures. The exact number of provider offices changes constantly, usually increasing at the time that new contracts are awarded and declining throughout the contract period. In June 2020, 3,476 offices held a legal aid contract across civil, criminal and family law (down to 3,379 by December 2020). Some of these are multiple offices of the same firm, others are sole offices or practitioners; some offices offer multiple categories of law and others only one. Of these, 279 offices were authorised to offer immigration and asylum legal aid, according to the LAA’s Directory of Legal Aid Providers spreadsheet (dated 17 June 2020).1 This had fallen from a peak of 326 when the contracts were awarded in September 2018, after a low of 231 before those contracts were awarded. It compares with 1,637 offices authorised to do family legal aid work, 1,682 criminal providers, 430 for housing, and 56 for welfare benefits (which is largely outside the scope of legal aid).
These offices are not spread evenly through the country. The LAA divides England and Wales into geographical ‘procurement areas’, which vary in size for different categories of legal aid. For housing and debt, the country is split into 130 procurement areas, often comprising one or two local authority areas. For family law there are 108, whereas for community care there are 12 much larger procurement areas, and just 4 for welfare benefits.
Mariam was subjected to serious violence by her husband in a country which offers women little protection from family violence. She borrowed money secretly from a relative to flee to the UK with her daughter Zainab, after her first daughter was forced into marriage against her will by Mariam’s husband. She suffers from depression, anxiety and post-traumatic stress disorder (PTSD) as a result of her experiences. With her daughter, she was accommodated in Suffolk, in the East of England region.
As Figure 3.1 shows, no legal aid advice is available in Suffolk, nor in the counties to the north and south, although all of those counties accommodate dispersed asylum applicants. Those to the west appear to be well supplied, with five providers having received contracts in September 2018 in the closest access point, Cambridgeshire and Northamptonshire. One of them either lost or surrendered its contract within the first year, leaving four in Figure 3.1, and another did not open any cases in the year. All but one of those providers is in Northampton, to the far west of that access point, over two hours by car and three by train from Ipswich. The total number of cases opened in that access point that year was just 49. Eventually, Mariam found a solicitor in Bedfordshire, also over two hours away by train – a daunting journey for a woman suffering with anxiety and PTSD, and barely able to speak English.