Vol. 37 Associate Editor
Vol. 38 Business and Development Editor
On February 1, 2016, the World Health Organization declared a Public Health Emergency in response to the Zika virus outbreak. While the WHO does great work to monitor and control many international health concerns, lately it has drawn criticism for its lackluster response to crises. These criticisms were particularly acute regarding the Ebola outbreak. Many believe that if the WHO had taken action right when the outbreak was first reported, hundreds of lives could have been saved. The Zika virus presents an opportunity for the WHO to learn from the mistakes it made dealing with the Ebola outbreak so that it may more effectively combat this latest international health crisis.
Zika is a disease that transmitted by mosquitos. People infected with the virus generally suffer from a mild fever, skin rashes, joint pain, and a headache for a period of two to seven days. While these symptoms are relatively minor, the disease has risen to the level of international concern because of its apparent correlation with microcephaly—a condition when a baby is born with a significantly smaller head and brain. The number of babies born with this syndrome has dramatically increased in the same areas in which the Zika virus is the most prolific. The worst of these areas include Brazil and other parts of South America, as well as Africa and French Polynesia, but there have been many reports of the disease in other areas of the world. The WHO has been reluctant to state that Zika actually causes prenatal microcephaly, but the strong correlation between the two was enough to prompt the organization to declare this disease a Public Health Emergency of International Concern, or a “PHEIC.”
The concept of a PHEIC was created by the WHO’s International Health Regulation in 2005. International Health Regulations, or IHRs, are legal instruments that implement binding measures on all 196 member-states of the WHO. This newest set of regulations specifically outlines the procedures for declaring a PHEIC. Article 12 of the IHR gives the Director-General of the WHO the exclusive power to declare a PHEIC. The considerations the Director-General is allowed to take into account include the following: any information provided by a State Party; a decision-making instrument located within the annex to the IHR; the advice of the Emergency Committee; scientific principles and any available scientific evidence; and “an assessment of the risk to human health, of the risk of international spread of disease and of the risk of interference with international traffic.”
The WHO has used this mechanism three times since it was first created and most recently used it in response to the Ebola virus. Once a PHEIC is declared, member-states are required to do several things. These requirements can range from reporting and monitoring the virus to implementing state-provided funding. While the international community has generally lauded the creation of an emergency response measure, the way it has been implemented in the past has drawn great criticism. The WHO was highly criticized for the way it handled the Ebola outbreak. The Director-General did not designate a PHEIC until months after the disease was first reported. Therefore, the WHO should learn from their mistakes surrounding their response to the Ebola crisis and not make them again here.
The biggest criticism regarding PHEIC designations is that criteria for when the Director-General can or should declare a PHEIC are very vague. Article 12 essentially instructs the Director-General about what types of information he or she is allowed to consider but does not provide any guidance in terms of what facts actually merit a PHEIC determination. Article 12(b) instructs the Director-General to look to another area of the IHR for further instruction—the decision-making structure found in Annex 2. This decision flow-chart does provide some assistance to the Director-General about whether a PHEIC declaration should be made, however it needs far more depth and detail. For example, the decision structure is very clear about what actions need to be taken if there is an outbreak of a specific disease, such as smallpox, polio, and the plague. However, if a disease is “new,” such as the Zika virus, and therefore does not fall into one of these categories, then the disease falls into a catchall category called “an event of potential international public health concern.” The problem is that the WHO is using the definition of PHEIC to decide if one should be declared. In other words, the decision matrix says that an international public health emergency should be issued any time there is an international public health emergency. The tautology here can lead to confusion, to say the least. While the Director-General of the WHO does have expertise in this matter, the lack of clear guidelines opens the organization as a whole to criticism. The other four criteria the Director-General is allowed to consider aside from the decision matrix are also vague at best. Again, these offer only sources of information the Director must consider, not what to do about the actual information obtained from these sources.
These problems will diminish the longer the regulations are in place. The more the WHO applies these criteria to international health concerns, the more precedent it creates for deciding issues in the future. However, if the WHO can reform the 2005 IHR to include more concrete guidelines now, it will be better able to declare states of emergency quickly and only in those situations where it is warranted. Ultimately, this clarity could save lives.
 World Health Org., [WHO], WHO Statement on the First Meeting of the International Health Regulations (2005) (IHR 2005) Emergency Committee on Zika Virus and Observed Increase in Neurological Disorders and Neonatal Malformations, (Feb. 1, 2016), http://www.who.int/mediacentre/news/statements/2016/1st-emergency-committee-zika/en/.
 Sabrina Tavernise & Donald G. McNeil Jr., Zika Virus a Global Health Emergency, W.H.O. Says, N.Y. Times (Feb. 1, 2016), http://www.nytimes.com/2016/02/02/health/zika-virus-world-health-organization.html?_r=1.
 World Health Org., [WHO], Fact Sheet Zika Virus, (Feb. 2016), http://www.who.int/mediacentre/factsheets/zika/en/.
 In its published Fact Sheet on the Zika virus, the WHO notes the correlation but states “more investigation is needed to better understand the relationship.” See supra note 3.
 Supra note 2.
 See generally, World Health Organization, [WHO], International Health Regulation (2d. ed. 2005) available at http://apps.who.int/iris/bitstream/10665/43883/1/9789241580410_eng.pdf.
 World Health Org., [WHO], International Health Regulations (IHR), http://www.who.int/topics/international_health_regulations/en/.
 Supra note 9.
 Id. at Art. 12.
 Supra note 2.
 Pedro Villarreal, Reforms of the World Health Organization in Light of the Ebola Crisis in West Africa: More Delegation, More Teeth?, Volkerrechtsblog (Aug. 25, 2015), http://voelkerrechtsblog.org/reforms-of-the-world-health-organization-in-light-of-the-ebola-crisis-in-west-africa-more-delegation-more-teeth/.
 Supra note 9.