A legal mapping of 48 WHO member states' inclusion of public health emergency of international concern, pandemic, and health emergency terminology within national emergency legislation in responding to health emergencies

Abstract

WHO has determined a public health emergency of international concern (PHEIC) seven times, and beyond this nomenclature declared COVID-19 to be a pandemic. Under the International Health Regulations (IHR), and through their operationalisation in the joint external evaluation (JEE), governments are urged to create suitable legislation to be able to enact a response to a public health emergency. Whether the pandemic declaration had a greater effect than a PHEIC in encouraging goverments to act, however, remains conjecture, as there is no systemic analysis of what each term means in practice and whether either has meaningful legal implications at the national level. We undertook a legal scoping review to assess the utilisation of PHEIC and pandemic language within national legislation in 28 WHO member states. Data were collected from national websites, JEE reviews, COVID Analysis and Mapping of Policies Tool, Natlex, and Oxford Compendium of National Legal Responses to COVID-19. We found that only 16% of countries have any reference to the PHEIC in national legislation and 37·5% of countries reference the term pandemic. This finding paints a weakened picture of the IHR and PHEIC mechanisms. Having such legalese enshrined in legislation might enhance the interaction between WHO determining a PHEIC or declaring a pandemic and resulting action to mitigate transnational spread of disease and enhance health security. Given the ongoing negotiations at WHO in relation to the amendments to the IHR and creation of the pandemic accord, both of which deal with this declaratory power of the PHEIC and pandemic language, negotiators should understand the possible implications of any changes to these proclamations at the national level and for global health security.