Adjunct Senior Fellow for Cybersecurity and Global Health, Council on Foreign Relations; Visiting Professor, Washington University School of Law
Senior Fellow for Global Health, Economics, and Development, Council on Foreign Relations
BOLLYKY: Great. Well, let’s get started. I think I actually know most people in the room.
But good afternoon. I’m Tom Bollyky. I direct the Global Health Program here at the Council. It is my great pleasure to welcome you to this event on the future of the International Health Regulations (IHR). At the Council it is our ambition to be—to be timely, although today really does feel like it sets a new standard.
Just yesterday, for those of you that don’t follow closely the World Health Organization (WHO) Emergency Committee (EC), they’re convened for the fourth time about the current Ebola outbreak in the Democratic Republic of Congo (DRC), and they finally recommended declaring that outbreak to be a public health emergency of international concern (PHEIC). The WHO director general (DG), Tedros Ghebreyesus, accepted that recommendation.
As a general matter, WHO has been praised for its response to the current Ebola outbreak, particularly in contrast to the feedback that they had received after the West Africa outbreak of Ebola in 2013 to 2015. But they have been criticized by aid agencies, by public health officials, and especially by international law experts on their refusal to declare a PHEIC.
This was especially true after cases of Ebola virus spread to Uganda. Many speculated that cases in Goma would soon follow, given that it is a city right across the border in Rwanda. In addition to be a large city, Goma has an international airport. This week, the spread of cases to Goma happened.
In the past, the emergency committee explained its refusal to declare a PHEIC because, they argued, that it would add nothing. The Democratic Republic of Congo—DRC—was already sharing information. It was already coordinating with the WHO, which was implementing—(phone noises)—hmm. (Laughter.)
Q: I think they’re calling someone for us.
BOLLYKY: Yes. The DRC was already coordinating with the WHO on recommendations and the emergency committee feared—(phone noises)—that a PHEIC would be counterproductive, undermining trade and traffic to the region. (Phone noises.) Apologies, I have no idea what is driving this phone noise.
Q: Somebody wants to listen to you.
BOLLYKY: I guess so.
Q: It’s the Emergency Committee. They’re listening in. (Laughter.)
BOLLYKY: Perhaps. Perhaps. (Phone noises.)
STAFF: Sorry. It’s off.
BOLLYKY: OK. Great.
So the—in a Lancet op-ed, the WHO’s Strategic and Technical Advisory Group for Infectious Hazards defended the past refusals to recommend a PHEIC, arguing that one of the major purposes of the International Health Regulations was preventing unnecessary restrictions to trade and travel. The authors of the Lancet piece argued the refusal to recommend or declare a PHEIC was consistent with that purpose.
And, so, it was interesting in the press conference yesterday that both the DG and the emergency committee chair strongly emphasized that this was a regional outbreak. They said that there is no global threat here, and spent as much time warning about potential restrictions to trade and travel as they did explaining why this was a global health emergency that people should take seriously.
And the question is now with the PHEIC declared: What will be different about the international response to the current Ebola outbreak? What are the implications for how the declaration of this PHEIC has been handled for the International Health Regulations and its future?
To talk about what the problems that the IHR were meant to solve and how the current use of the IHR in Ebola outbreak will affect that instrument, we have—in my view, the perfect person. You have his bio and many of you know David Fidler already, but he is currently a visiting professor of law at the Washington University in St. Louis and an adjunct senior fellow here at the Council. But, more importantly, he’s really one of the leading experts in international law and global health, especially with regard to infectious diseases.
David has been writing in this space for twenty-five years. Long before global health law became fashionable, David was putting out pieces. I started reading David’s work in the ’90s and I can genuinely say it helped shape my academic and policy interests. I know many people in global health who say the same.
So I’m really pleased to have him here. He has been an international legal consultant for the World Health Organization and the CDC on global security matters. He has been twice appointed by the director general for the WHO as one of its rosters of experts on IHR, so is really well situated to help us think about these issues today.
I need to pass along that our other speaker today, Beth Cameron, who was supposed to be here, had to send her great regrets at the last minute. She had a family issue arise that prevented her from being here today.
David is going to start with ten to fifteen minutes of opening remarks, and then I will ask a couple of questions and turn it over to you all. We will end promptly at 1:30. Of course, before we get started, several warnings. Today’s meeting is for attribution. So anything you say here can and possibly will be used against you. If you haven’t already, please turn on your—turn off your electronic devices and refrain from leaving the meeting early.
And with that, I turn it over to David.
FIDLER: Thanks, Tom. And I do want to thank Tom for inviting me to participate in this roundtable. Over the past few years, my professional activities have been sidetracked significantly by dealing with my parents, who are both suffering from Alzheimer’s, and if you have experience with that, you know. So it is going to just be bizarre to say this but I’m glad Tom has coaxed and pulled and forced me to think about a different disease for today.
And I just want to share a few comments in relationship to this. You might—you might also get a sense of some of the rust that I still need to blow off on these issues. Tom and I were talking about this because I used the old—I used the old way of referring to a public health emergency of international concern talking to him yesterday, which was PHEIC, and then I started using—(changes pronunciation)—PHEIC, and I don’t know if—it’s—(changes pronunciation)—PHEIC now? Is that what—
FIDLER: Is there a common—
BOLLYKY: There’s no standards.
FIDLER: There’s no standards. (Laughter.) OK. All right.
Q: Twitter’s been fighting about it.
FIDLER: OK. Twitter’s been fighting. (Laughter.) Well, they fight about everything. All right. So if I refer to it in different ways, you know, please forgive me for that.
OK. We’ve just been through a significant controversy about a key aspect of the international health regulations. And these are the ones adopted by WHO in 2005, and that’s the authority of the director general to declare public health emergencies of international concern, or PHEIC—(changes pronunciation)—PHEIC—(changes pronunciation)—PHEIC, whatever you want to call it, right? And this controversy has involved whether and when to declare such an emergency in connection with this Ebola outbreak in the DRC.
Now, most of you know, the IHR is one of the most important international legal instruments in global health governance specifically for addressing infectious disease events and outbreaks. The IHR has a broader scope than infectious diseases but that’s its—one of its main focuses.
STAFF: I’m sorry, David. The microphones are, unfortunately, not working.
STAFF: You’ll have to just speak up a little bit.
FIDLER: OK. All right. Is that better?
FIDLER: OK. All right. So the Ebola outbreak in the DRC is not the first time that controversy about this power in the IHR has arisen. So we’ve had some of these before. But I think this controversy has proved to be one of the most damaging controversies about this part of the IHR and, I’m going to argue, other parts of the IHR as well.
So I want to use my introductory remarks to do just three things. First, I want to spell out what I think the damage that has been done to the IHR in this latest controversy. Second, I want to argue that yesterday’s decision to declare a public health emergency of international concern does not mitigate that damage. And then, third, I just want to consider some of the implications of this episode for the future of the IHR and global health governance.
Just very quickly, a little bit of background on the IHR. Most of you, I think, have some familiarity with this. The version of the IHR we’re talking adopted in 2005 by WHO—this is an instrument of international law, a treaty, if you will, that constitutes the main binding international agreement on managing infectious disease outbreaks in advance.
This instrument has a very long history stretching all the way back to the mid-19th century. I’m not going back that far. If we want to go back, we can go back for discussion purposes. But for our—I think for what we’re trying to do today, it’s important to emphasize that the IHR that were adopted in 2005 really transformed this legal regime and it was an effort to update international law in an era of emerging and reemerging infectious diseases.
Now, lots of changes were made to the IHR in 2005. But one of the most radical and important changes was granting the WHO director general the authority to declare the existence of a public health emergency of international concern, and one of the purposes behind this granting of authority was to give the leader of an international health organization the authority to make such a declaration in part of putting the international community on higher alert about a serious infectious disease outbreak or event. And the idea behind issuing the alert was, obviously, to put countries on notice that something important was happening, but then with that alert issued to allow the WHO director general and the organization to provide recommendations—not binding, but recommendations on how countries ought to address and deal with this particular outbreak.
This change is radical in the sense that, in essence, real political power was handed to the WHO director general. Previously, under the old IHR, one of the fights had always been countries wouldn’t declare. They wouldn’t share information. This was kept within the confines of sovereignty.
This power granted to the WHO director general was, in a sense, taking that away from sovereign states and putting that authority at the level of an international health organization. As I said, it’s radical. I’ve even, I think, in the past argued that was a revolutionary change, that we had never seen anything like this in international law on public health.
In fact, you rarely see this kind of authority granted to the leader of an international organization in any area. So this was a very, very important and significant piece of the new IHR. Now, the IHR legally then defined what such an emergency is so there’s a definition in the text, and it sets up the criteria, the procedures, and the requirements for the DG’s exercise of that authority.
Now, given the nature of this authority and its importance in the overall scheme of the IHR, the provisions in the IHR on this authority and the exercise of this authority have attracted attention, right, since 2005, 2007 when they came into effect and they’ve been the source of previous controversies about whether a PHEIC should be declared or when a PHEIC should be declared. So we’ve had these discussions in the past.
So, for example, you remember the West African Ebola outbreak, right? 2014. There, the WHO director general was heavily criticized for her failure to exercise in a timely manner the authority that the IHR provided to her for these kinds of, you know, serious outbreaks.
But that controversy in 2014 was mainly about the DG’s failure to exercise the authority, right, and that controversy did not focus on the process in the IHR of deciding whether and when to declare a public health emergency of international concern, and that’s what we’re going to see unfolding here.
All right. And I think that’s where this latest controversy is, in fact, different because it’s focused significantly on the operation of the PHEIC process and that process established in the text of the IHR, and this focus—and the arguments for this thing go back and forth, back and forth about what happened and why it happened is what, I think, makes this controversy more damaging for the IHR than previous controversies that we’ve seen about this authority and the provisions in the IHR.
And the damage to the IHR that arises from both—excuse me, the damage arises from both how the director general and the Emergency Committee handled the process and the decisions, and the damage also emerges, I think, from how critics of those decisions not to declare a PHEIC—(inaudible). And I want to spell out these claims briefly and give you a rough sense of what I’m talking about here.
All right. This controversy really emerged from the three previous decisions of the DG based on recommendations from the Emergency Committee not to declare a PHEIC in connection with the Ebola outbreak in the DRC. So we have that October 2018, April 2019, and June of this year.
Now, there’s lots of elements of this controversy. We talk a lot about the details. But for the sake of the limited time I’ve got, I want to focus on why I think the explanations given for the decision not to declare a PHEIC, especially those associated with the June 2019 decision, could really cause damage for the IHR.
Based on what we know—well, maybe I should reframe that. Based on what we’ve been able to read about what happened in the process—that isn’t necessarily knowledge—but based on what we’ve been able to access publicly, it appears as if the director general and the Emergency Committee expected that a declaration would serve no beneficial purpose, as Tom was mentioning in his opening remarks, and that a declaration would actually harm the response by triggering countries’ imposition of restrictions on trade and travel that would materially impede managing the response to the outbreak.
I don’t know about you, but those reasons constitute for me a comprehensive—(inaudible)—not only the PHEIC function in the IHR, but also the provisions in the IHR that are supposed to regulate the imposition of trade and travel restrictions during these events. In short, the DG and the Emergency Committee appeared to conclude that the declaration would produce no epidemiological, no political, and no legal benefit in dealing with this outbreak, and that such a declaration would produce counterproductive and (irritable ?) behavior on the part of—(inaudible).
Now, the focus on the likelihood of harmful trade and travel restrictions suggested that the director general and the Emergency Committee has no confidence in all of the IHR provisions that regulate the imposition of trade and travel measures during outbreak events. Or, to put it another way, a declaration would harm the outbreak response because the IHR are ineffective in regulating trade and travel measures. Ouch, right? That’s a real black eye, I think, for the IHR in terms of its provisions about declaring a PHEIC and its provisions about regulating trade and travel.
All right. Turning to the criticism of the decision not to declare, these criticisms have involved epidemiological, political, and legal (pursuits ?) and arguments of what the DG and Emergency Committee did or did not do. And, again, from my perspective, that criticism was so comprehensive and harsh that it called into question the legitimacy of that authority in the IHR and the process that the IHR sets up, right, and it’s crudely summarized.
The various critiques of the director general’s decision and the EC recommendation painted the reasoning behind these actions as—and I’m just going to use a few of the adjectives that I saw—contorted, politicized, dismissive of international law, and arbitrary. These are fighting words, right? It’s difficult not to conclude from the nature of the criticism both in terms of the substance but also in terms of the language of the dispute—(inaudible)—that a key part of the IHR was not—was functioning not only ineffectively, but also counterproductively.
All right. There’s another black eye for the IHR in connection with the nature of the criticisms about exercising the law or the exercise of that authority. OK. But does yesterday’s decision to declare a public health emergency of international concern mitigate the damage that was done during the controversy over these processes? My answer is no, I don’t think that it does. Just let me give you a few reasons why.
First, the decision to declare a PHEIC yesterday I think only increases the scrutiny of why the director general and the Emergency Committee rejected making such a declaration three times earlier. It’s actually just one month ago. The idea in that just one month, right, that the declaration now offers potential benefits and avoids the threat of harmful trade and travel—(inaudible)—is really hard to accept that. It’s really hard to buy and it’s—(inaudible)—argument. And to some extent they didn’t even really try. So that raises, again, questions about what is going on in this process. So that, to me, doesn’t mitigate the harm from that perspective.
Second, I think the decision to declare a public health emergency of international concern yesterday really underscored elements of those critiques launched against previous decisions not to declare, and I think it has especially highlighted the thrust of the criticism that this process that we saw with Ebola in the DRC: this process was flawed epidemiologically, this was flawed politically, and it was flawed legally.
In short, that decision should have been made earlier. (That’s just reason ?). But in the—in the process of not declaring, the IHR got badly battered and bruised along the way.
All right. Now what, then? OK. This is the situation that we find ourselves in, or assuming that this argument that the IHR comes off rather badly in all these areas whether or not it has some merit even after the decision to declare an emergency, what does all of this mean? What are the implications of these arguments for the future of the IHR in terms of global health governance?
I think there are a number of ways of approaching this question. One approach is we could decide that this controversy and the damage done during this are specific to this particular outbreak, right, its configuration of factors. It is, in other words, an unfortunate but it’s a sui generis event, and that when we’re thinking about the implications of this we shouldn’t exaggerate or expand that into what role the IHR might play in different future outbreaks that we know are going to happen, and we should keep it in the confines of this particular outbreak. Or we could probe whether this controversy revealed some deeper problems in the IHR and its role in global health governance.
If there are these problems, what are we supposed to do? Damage has been done to the IHR. There are deep problems with the IHR and its role on global health government—governance. What do we do? Because it appears to me—and maybe this is where those of you who’ve been more on the ball than I have recently—there could be—(inaudible)—amending the IHR is just a nonstarter. Politically, diplomatically, it’s not going to happen. The IHR is what the IHR is going to be, going forward. Then what do we do with the deeper problems that I just described? OK.
And I am personally still struggling between which of these two approaches makes more sense with regards to this controversy. I haven’t processed that entirely myself and I hope that’s something that we can talk about today—where do we go with this since the damage has, in fact, been inflicted in this process?
I do think that answering this question and similar related questions requires a broader assessment of the management of the Ebola outbreak in the DRC, and I think that assessment would have to include the governance implications of WHO’s emergency response. And as Tom indicated, I think most people—this has been better than what we saw in 2014. There’s been improvement in terms of WHO’s response to this outbreak.
I think it also needs to take the assessment to take account of the use of vaccines, which were not available in 2014 but have played an important role—(inaudible)—outbreak. I think it needs—that the broader assessment needs to take a look at the inner organizational coordination and assistance that’s been happening well before the declaration occurred—again, much earlier than we saw in 2014. And there are other pertinent issues that would have to be take into account in this assessment on this sort of difficulty side. How do you engage with this process in a situation where the community is suffering from more conflicts? In other words—(inaudible)—over and over again—(inaudible)—difficult outbreak issue.
Now, for me, many of those questions are really not anchored in the—in this outbreak event. There’s a little bit broader governance issue that I think we need to also assess as we’re trying to figure out what happens at the IHR, looking forward. And I, obviously, haven’t done an assessment in the introductory remarks, but perhaps that’s somewhere we can go in our discussion. And maybe we can take some steps in that direction because I think it is important that analysis of what happened under the IHR—(inaudible)—outbreak, I think that needs to happen within the larger context of the global health governance (that this ?) outbreak has created or has taken (advantage of ?).
So I’ll—(inaudible)—hopefully answer questions.
BOLLYKY: Great. That’s terrific. Thank you.
I’m going to ask you two questions, both of them are going to be in connection the critique of the IHR that DG and emergency committee gave and what one draws from that. I’m going to take the trade and travel piece and the funding piece separately.
On the trade and travel side, of course, in the 2014 Ebola outbreak most other African nations did ban trade and travel from the most affected nations. Australia and Canada refused to or declined all visa requests. All but two commercial airlines canceled flights. Insurance companies refused to pay for rescue services to the area. So there’s a good basis for them to conclude that similar trade and travel restrictions might result in this instance.
Now, the IHR is built around restricting the imposition of those trade and travel restrictions when they are unnecessary and not science-based. I’m struck by international legal instruments’ limitations in policing the necessity and scientific basis of government decisions. So the other area in which I work in is trade. The WTO has likewise struggled in policing countries in their public health measures and ensuring they are science-based and necessary.
Where do we look for inspiration on policing trade and travel restrictions? What measures can address that? Are there other instruments out there or regimes that have done this more effectively that the director general might not be aware of? Where do you there being feasible pathway for addressing trade and travel concerns?
FIDLER: OK. Are you going to mention financing or—
BOLLYKY: Do you want me to do—
FIDLER: I don’t know. I mean—
BOLLYKY: Well, on the financing side, the committee and DG had some basis for concluding that a PHEIC alone may not necessarily generate financing. The Zika declaration didn’t generate very much financing. And so my second question is: if there are no trade and travel restrictions but there are also no substantial increases in aid—which is largely what happened in the Zika outbreak—has the current use of the IHR been a success?
FIDLER: OK. Well, let me—I’ll deal with the financing issue—(inaudible)—a little bit on the trade and travel issue.
I hope everyone is aware that the IHR contained no provisions about funding anything. And so the expectation, the prediction, the promise that a declaration of a public health emergency of international concern will in and of itself generate more funding is just not based on the IHR at all. It just isn’t there. And this is where there are some curious tensions within the argument that the critics of what the DG and the Emergency Committee did, because they’ll go to the text of the IHR to critique what they didn't do or should have done according to the text of the IHR in that process because it’s going to produce benefits which are nowhere in the text of the IHR.
And the DG already tried to tamp down expectations, that you don’t make a declaration like this to raise money. And so there’s already this sense that you now have heightened expectations from the proper operation of the IHR in terms of something the IHR has not—there’s nothing in there about this.
We’ve been through this argument with regards to core capacities and the lack of funding for that requirement of the IHR, let alone following, you know, temporary recommendations in connection with that. So in the sense of the argument that a declaration would serve no purpose with regard to increasing finances, textually, that’s accurate.
On the financing side, though, the declaration of a public health emergency of international concern fits into the larger context. I think it’s a larger context where we find the signals about whether countries are really ready to pony up money. Countries didn’t pony up money in 2014 with the West African Ebola outbreak because the WHO director general finally declared a public health emergency of international concern, right? That wasn’t the reason why that money started pouring in. So, again, we have to think about that larger context.
The trade and travel issue is harder because this has been part of the IHR—this legal regime since 1851. There have been attempts made by international diplomacy and international health organizations to impose requirements that trade and travel restrictions should have to be based on science, informed by scientific principles, and not be disproportionate to the risk. And this echoes international trade law. I mean, they’re almost mirror images of each other. And this has been a problem that has dogged this legal regime since the mid-nineteenth century, and the new IHR in 2005 has this provision in connection with that but this is an old, potentially—(inaudible)—in that regard.
Now, in my review or perspective on what happened here, those provisions are in the IHR because you should expect countries to engage in trade and travel. You know this is going to happen and you know that some of the countries are going to go outside the bounds of that, and there’s a process that’s aligned in the IHR to deal with that. And those trade and travel restrictions also have to do with issues that are not directly in the declaration of a public health emergency of international concern. And, again, that’s a—that, to me, is a—is a real problem here.
If you look up what’s happened since the IHR of 2005 came into force in 2007—I’m thinking H1N1—yeah, we had some examples of some questionable trade and travel restrictions, but compared to historically it’s pretty good. And so there was some sense that countries were listening to them. 2014, if we’re learning lessons about trade and travel restrictions from the West African Ebola outbreak, that’s the wrong case study.
And I heard this from both private sector enterprises and from government officials who heard WHO issuing that temporary recommendation: Don’t do these things. Why the hell should we listen to WHO after it has comprehensively screwed this up, right? No, we’re going to act on our own here. Your failure to deal with this early and often is what’s led us to this situation where now politically if not epidemiologically we have to take—we have to do something, right? And so they just weren’t willing to listen to them.
What’s interesting about this Ebola outbreak is that we—I mean, most of you have read the drip, drip, drip of bad news, right, coming out about how this—(inaudible). But we haven’t seen the drip, drip, drip about trade and travel bans. And I think part of that has to do with there’s the perception that these other things outside of the IHR are working better than they did in 2014.
So they’re not afraid. They’re not necessarily as concerned about that. Whether or not that continues, you know, I don’t know. So this is sort of the problem that’s festered with the IHR from the very beginning, and I think it continues to do so today.
Well, for an Emergency Committee saying we’re not going to—they’re not going to recommend exercising this authority because this might happen seems to me to be outside the purview of what that committee ought to be doing. And I think this is sort of to some extent some of the legal arguments that were made about this. Not that that’s an illegal recommendation, but this is sort of—sort of outside the authority, right, what you’re supposed to do. You’re really going ultra vires; you’re going outside your responsibility in connection with this issue.
So if we have in this situation no financing—we shouldn’t expect that from an IHR anyway—and trade and travel restrictions remain manageable, then I think you could say the IHR is a success. But we’ve had—before we get to this point all this damage has already been done through the IHR, and I don’t know how some of those things are going to play out either on the financing or on the trade and travel side if this continues—if the situation continues to develop.
BOLLYKY: Great. I’m going to start calling on people in the order that I see. So just raise your placard and I will do that. I will comment just very quickly that I think that David has offered us a very optimistic reason why we haven’t seen trade and travel restrictions, because it’s tied to the competency of the WHO response. I hope you’re right, because if you’re right that means becoming better in the WHO response results in fewer trade and travel restrictions, and that is a good incentive for supporting a better, more competent, comprehensive WHO response.
FIDLER: Sorry. And that was the intent of the radical transformation of the IHR. These pieces are all put together in a very intricate blueprint. But if you can get WHO instead thinking early and often, and acting on public health principles and scientific evidence, you’re less likely to have an explosion of unnecessary irrational trade and travel limits. That was part of the thinking. Not a guarantee, right? You’re never going to get rid of some—get rid of the possibility that some states are going to go rogue, right, in connection. We know that’s going to happen. There’s a process.
But you want to get it to the point where it does not impede managing a response to the outbreak. And so those things are tied together, I think, and that’s the real concern I have about the damage that’s been done to these—not only each individual part but their connection with regards to those outbreaks—(inaudible).
Q: You’ve put a lot out there, and I’m—
BOLLYKY: Oh, and I’m sorry. I think most people know who you are, but you should please introduce yourself.
Q: Rebecca Katz, Georgetown University.
So you’ve put a lot there and I’m going to try to just limit it to a few spots so I don’t dominate the discussion. (Laughs.) But first, I was really—I was excited to see that you were doing this and to see your name out here. Given your involvement—your deep involvement in kind of the early years and the structure and the development of the IHR, I was just fascinated to hear what you were going to say about your thoughts about this—(inaudible). So I’m incredibly thankful for that.
Q: Oh, no, no. (Laughter.) No—(inaudible)—like, I am too and, like, colleagues, we’ve all been very deeply concerned about the damage to the IHR, and I think—and to global governance in general. And I also think that there is still a lot of misunderstanding around the IHR, and we heard that—we heard that directly from people in Geneva on the Secretariat who kept claiming that this was a risk management tool, all right, sort of like, you know, that sort of all the—(inaudible)—if you care about governance and legal international law.
But I think that just three—a couple of quick points. One, I’m curious to your thoughts of the importance of getting somebody with governance and legal expertise on the EC, because I think the—I think we’ve seen that the decisions that they—the recommendations that they make to the DG are—have broader impact, and what that would—why that might be important or not.
Your comment about how you don’t think—the word is that it would be impossible to reopen the IHR. I think I believe—check with me, but I think there might be a workaround. You know, in the arms control world we have review conferences every couple of years where we talk about understandings, and there’s agreement on understandings of international agreements. And I think that that might be a way to not reopen the text but get better understanding from the member states about what it means and what it means as, you know, time evolves, and I’m curious about your thoughts on that.
And then the third is that I think, you know, one of our problems is that there’s—and you’re seeing it in the debate right now—there’s not a lot of empirical data out there on, you know—and the question that I get and I’m sure everybody else whoever lectures on the IHR get is when you start to talk about the public health emergencies of international concern, the PHEIC, so what does it do? What does it mean?
And I think, you know, the challenge is we don’t have a very large data set at the moment, right. But curious to your thoughts about what it would mean to actually start creating that data—creating that database, capturing that information so we can start having a more informed discussion about that. I think some of that’s happening right now, at least from the WHO’s commitment to even just capture the—capture the travel and trade responses somewhere officially—(laughs)—so that does become a resource that can be reviewed. Anyway, so I’ll stop there.
FIDLER: OK. Do you want me to—do you want me to take a few, or?
BOLLYKY: Yeah. No, no, please, go ahead.
FIDLER: In terms of governance legal expertise on the Emergency Committee, this, I think, to some extent goes to the lack of transparency that we have about what do they actually talk about. You see the statements, right. They’re briefed on all the law and their role and all. That’s right at the beginning of all of this. I don’t know what they were told, right. I don’t know whether this is being presented in a way which is—has fidelity to the text of the IHR. And so it would be nice to know exactly how much of that they are provided, how that gets processed in terms of what this specific constellation of experts, you know, does in regards to these issues.
Whether having that—whether, if there had been an expert with that background on the Emergency Committee, would that have swayed them in this particular item? I don’t know. I mean, one of the things that was so surprising to me about this compared to other areas of international law where I’ve worked where you have fights over this types of authority, not necessarily exactly like this, but usually it’s states that get upset about the way in which authority is exercised.
Here, you have the hostility coming from inside, right—the very processes that are set up to exercise this unusual authority—and it’s not just opposition. It’s sort of like this hostility. If we do this it will be so bad, even bad on things that this instrument is supposed to regulate. And so I’m not sure that would matter and, to me, that’s an indication of how it may be worse than even I think that it might be.
The other thing, too, about having legal expertise on this is that will only get us so far because that power to declare is discretionary. There is nothing in the IHR that says if you have X, Y, and Z, therefore, this is required in connection with the exercise of this authority. There’s a definition, right. But the way the IHR is set up is this process decides what goes in that definition and so it’s difficult—it’s not really a legal question when you get down to the exercise of the authority, right.
There are ways you can use the law to shape how that goes forward. But at some point, it’s up to the discretion of the committee and the DG, and the DG has the real responsibility here, and the text of the IHR places that responsibility clearly on the DG. The text of the IHR and the Emergency Committee is actually—I mean, there’s nothing—there’s hardly anything there. The DG has that responsibility. And so DG, clearly, has lawyers supposedly working for the—I mean, to me, if that’s all—the institution is set up to provide that. I just—I don’t know what—how that conversation is playing out, right?
Q: I mean, maybe less on, you know, a—right. Legal from the Secretariat is sitting around the back of the room. But I guess maybe somebody who would think about the—think about what—the implications of a decision for governance and the regime in general.
FIDLER: Well, that’s what—they clearly made a governance statement here, right.
FIDLER: So they were thinking in those terms, and they’re drawing on a history of states are going to do this. Let’s not give them a reason to do it.
To me, that’s just a complete misunderstanding of how the IHR—how these provisions are supposed to work together—why there are temporary recommendations on how that’s supposed to work in between the legal requirements and the discretion, right? I mean, it just—but this—I mean, this is an indication is it really that bad. And this is where I’m kind of like I’m not really sure because I haven’t been on top of it as I have been in the past, right.
In terms of processes outside the IHR, one of the things I was thinking about in preparing these remarks is how much we’ve seen happen outside the IHR, which goes, for example, to improving core capacities. So we have seen this start to happen. It’s not within the four corners of the text, but we have seen processes outside of that help improve compliance with these issues, and that’s, obviously, related to the state responsibilities. Here, we’d have to focus—I mean, if we’re going to follow my analysis we got to focus on what looked like a completely broken process, and I don’t know how to do that specifically because that’s really institutional and that’s centered in the Office of the Director General.
My prediction is that future Emergency Committees are going to be much more reluctant to go in the direction of governance and make these kinds of statements, and maybe that’s a—maybe that will be a good thing. We just don’t know, right, in connection with that.
So I think it’s worth exploring options outside of this. Obviously, it isn’t going to amend the text, but if it makes this instrument work better, let’s explore it. Let’s find out. And it would be helpful to have more empirical data and I think the data needs to be as fine grained as it could possibly be because if we’re—if we’re thinking of West Africa as the case study for what, oh, my goodness, there’s, again, a misunderstanding of what happened from a governance point of view and legal point of view. In that outbreak context it should not be informing these kinds of decisions. And so then the question becomes how does that empirical data get translated into these processes.
I’m not sure the lack of empirical data can explain what happened here. Again, there’s something much bigger and much more worrying going on. I think there was plenty of data. Taking your point that there needs to be better, I think there was plenty of information and data here and this is what they did. I think that’s—explain yourself, right, and I think, unfortunately—and maybe this is where those outside WHO need to make sure this doesn’t disappear—we’re now seeing the rallying around the director general, right. OK. Now we’ve got the declaration. Let’s go. We’ve got a problem here. It’s pretty deep and we need—we need not to forget that as this moves forward as one of the implications.
BOLLYKY: Sir George?
Q: Yeah. George.
A couple things. I like your reference to 1851 because all the international organizations have started because of concern with trade. All of them. That’s the basic problem behind—the basic issue. The fundamental raison d'être of these international organizations is not to impede trade. Don’t let us forget that from the start.
Secondly, it’d be a damn fool of a director general not to follow the advice of the committee—not (to have ?) the committee.
Third point I would make is it is purely a matter of trust. Do we trust the committee or don’t we trust the committee? The third point—if had to suggest anything that would improve the process, were we to improve the quality of information that gets to the committee, I think that was—understand that was the major problem in West Africa outbreak—the quality of the information, the timeliness of information that got the committee—because I know that some of the information that was available did not get to the committee on time.
So if I had to make any suggestion for the improvement of the process, it would be the quality of the information. I don’t—not sure how you’re going to improve the issue of trust in the committee and trust in the DG. I’m not sure how you’re going to do—you’re going to do that. But the only concrete suggestion I would make for improvement would be the quality of the information that gets to the committee (and there should be much?) and I think the process set up for the new security agency for improving the conditions in countries to improve the quality of that information is a step in the right—is a step in the right direction, and I think it was President Obama that gave us several million dollars to start this—a security—what’s it called right now?
Q: Yes, GHSI is a step in the right direction, because I can tell you still there are large numbers of the countries that do not have the capacity to provide the information and I think that is the crux of the matter—that they’re arguing after the horse escaped. Often, there’s not enough information (to write the decision ?) when, in fact, countries don’t have.
The second—last point I’ll make is that regardless of the quality of information, regardless of the states are sovereign, states are going to do what they think is in their best interest and the bigger they are the more likely they are to ignore or accept the IHR when it suits them. I think we have to accept that—have to accept that. But the only substantive recommendation I would make for improvement is to pay much more attention to the quality of the information that gets to that—that gets to that committee—the quality and the timeliness of that information that gets to that committee.
FIDLER: Do people have a sense about that issue in relationship to what this Emergency Committee did in regards to the quality? I mean, one of the things I always hesitated when reporters called me and said, should there be a declaration, is, like, a huge chunk of this is the epidemiological ground truth. And I’m a lawyer, I’m not an epidemiologist, so I’ve got to defer to those that understand this. So I don’t know whether—
Q: It is much better on this occasion than it was before. Much better.
FIDLER: OK. And I don’t know if that—I don’t know if that was—
Q: And they’ve been very public with it, so issuing daily reports.
Q: And there’s been a great dashboard. So there’s been a lot of information. But the EC is handpicked. I mean, you know what they’re going to—I think it’s—those of us who know the people on the EC know their biases. We know what their politics are. We know—so I think that that—I’m not sure you can totally separate the DG from the EC.
FIDLER: Certainly not—
Q: I might be—I might be completely wrong on that but—
FIDLER: Well, not in terms of how the IHR—how the procedures are structured, and politically, we’ve seen this in the news, right. Their people would say there’s no way the DG could go against the recommendations of the Emergency Committee. Well, that actually isn’t how the IHR is set up.
The DG has the authority, and the recommendations of the EC are only one of a long list of factors the DG is supposed to analyze. So one legal question I’ve had in connection with this is can we see how this happens or is this all now in the Emergency Committee’s bailiwick, and if that’s the case that’s not operating according to the text of the IHR.
Q: It would be—that would imply—if the DG were to make a recommendation apart from the committee, it would imply he has other sources of information the Emergency Committee is not privy. He would be absolutely a fool to do that.
Q: Have other source of information he doesn’t share with the committee to allow the committee to make that decision.
FIDLER: Or the conclusions from the information available and assessed by the Emergency Committee. The DG does not agree. I mean, the recommendations of the Emergency—there’s, like, six or seven or eight things that the DG is supposed to consider and make. That’s only one aspect of this.
So according to the text there are things outside of what the Emergency Committee does that the DG is supposed to consider including risk of harm to international traffic. I mean, that issue is on the table, going back to the importance of trade. The IHR does not ignore this—does not try to soft-pedal this. This is a problem. We have to manage this problem. The way they decided to try to manage it in the IHR adopted in 2005 was very different, and I think a smarter approach than what we’d seen in the past, which became very binary. This, I think, was an attempt to manage that problem within the context of a new authority, new requirements for surveillance capacities and response capacities. Other—all of these things sort of fit together in a way that was supposed to keep that problem—not eliminate it but keep it more under control so that it wouldn’t impede a response.
Q: A compromise.
FIDLER: Yeah. I mean, and so there’s a political governance sensibility in the IHR that is not just a risk—I mean, it’s not a technical thing. It’s much bigger than that. It’s much bolder in terms of how it wants to handle these types of problems. So how do you get a big state not to go off on its own?
Q: We can’t do it.
FIDLER: Well, you could—
Q: We had—
FIDLER: There are different ways of trying to make sure that their self-interests align with what needs to be done in connection with an outbreak and that’s what the IHR—that’s what the changes in the IHR were really trying to do.
FIDLER: And part of that was to give the DG authority, not a sovereign state—someone that sits above that to make this declaration to put everybody on alert that it’s go time, right.
Q: Matter of trust.
FIDLER: Yeah. And when you don’t have the trust in the institution or the DG—hint, hint, West Africa—things fall apart.
Q: That was the crux of the problem.
FIDLER: If you—if you’ve reestablished that across the governance landscape, that puts the IHR in a better position.
FIDLER: But that’s the—that’s part of the tragedy of this that, despite that, we have this damage that’s been done to the IHR in this process.
BOLLYKY: Great. We have three people and about seven minutes. So I want to make sure we have time to get to everybody.
John Lange, then Josh, and then John. And, again, if you’ll just introduce yourself.
Q: John Lange, senior fellow for global health diplomacy at the U.N. Foundation.
Thanks, David. I have to say I don’t agree with you in one respect and that is in terms of how damaging this will be in the long term. I think we’re right now in the middle of looking at this. But I think there’s another way of looking at it.
For one thing, WHO has made major improvements, huge improvements, in its emergency response capacity since 2014, and if you talk to Mike Ryan and others, they’re really on top of things. He’s the one who leads this at WHO—is spending most of his time in the field. And there’s a vaccine, which was unlike the situation back in 2014.
Maybe that Emergency Committee in these earlier meetings was a bit overconfident on how WHO could respond to this and that it really could keep this as—within DRC and, now, I know you can look at the legal text and say, well, but it should have been declared a—I’ll call it PHEIC. Anyway, but I think, basically, reasonable minds would differ in terms of the situation, I would argue.
And then—and there was a briefing at the Palais des Nations in Geneva on Monday morning with the U.N. undersecretary general for humanitarian affairs, Lowcock as well as Tedros, and Gressly was in by video, the U.N. coordinator for this. They all realized that the game had changed because of the case in Goma and that’s when Tedros announced he would have this. And maybe when we look back on this a few years from now we’ll be able to say, yeah, it was good that they declared it a public health emergency of international concern. But in the end, it was confined to the DRC except for the—there was a couple cases that earlier had been in Uganda and things went fine.
Or maybe we’ll look back on this and say, wow, they should have warned us earlier about this public health emergency because it became global. In some respects, I think we don’t know at this point of that. So my view is, basically, reasonable minds can differ. You may say that they all have their biases. Well, I think anybody on that committee, anybody in this room, has their biases.
Q: Absolutely. Yeah. (Laughter.)
Q: So I don’t know. I just don’t think—I think that you’re overstating how damaging this would be.
BOLLYKY: Great. I’m going to actually take all three because we’re not going to have time to get through them otherwise. So Josh, and just if you can keep it short so he can give you a response.
Q: Sure. Josh Michaud, Kaiser Family Foundation.
Thanks, David, for your comments. I wanted to focus on the role of the Emergency Committee in particular because, regardless of what the text says and the DG can have this list of things that, you know, pretty much lockstep with the EC, it would be a highly unusual circumstance where the DG would diverge from what the EC recommends. Therefore, the focus is on what the EC does and recommends.
And so from my understanding from your comments is that that is almost not defined at all in the text of the IHR. So they have leeway. And so we’ve had an evolving understanding of what the EC can, should, will do, and so, you know, there’s nothing to look forward to—I mean, look back to in the text to direct them what they should do. It’s really sort of of the moment in responding to it.
So, you know, we’ve seen this sliding towards a more general—they looked at the possible impact of the declaration. That’s something which they hadn’t done in previous ones. So, really, the focus should be on defining the role and the practices of the EC, it seems to me, if you wanted to define how those decisions get made because the DG pretty much follows the recommendation. So what do you think about that?
BOLLYKY: Great. John?
Q: John Monahan, Georgetown University.
It’s great to see you back in this game. (Laughter.) Actually, mine is a little bit different than Josh’s. It seems to me the decision to declare a PHEIC is ultimately the DG’s and the IHR’s. So really what we’re talking about here is whether we think Tedros made the wrong decision or not, right?
FIDLER: Mmm hmm.
Q: And so my question is where in the accountability process for WHO do we hold him accountable, if this is the right time or the wrong time—this response. There’s not a lot of accountability, as we know, in the WHO process. But there ought to be some way to look back and ask where in the—where is the right place in the arc to decide did he make the call right or not. The EC is super important. I agree with everything practically. But he’s the focus of attention. Where and how do we do that?
FIDLER: (To the first question) Fair point. We’ll have to see, and we’ll also see about all the various promises that have been made, right, about the declaration, whether the trade and travel worries prove to be prescient or whether the financing promises. But we’re going to find out, right, in terms of that issue.
(To the second question) Yes, I think it does focus our attention on what happens in the EC, and this, I think, goes back to some of Rebecca’s points. How we do that when the text of the IHR is—it has to go to the DG, right. So if the DG is worried about accountability, legitimacy, of this particular process for which he or she is given the authority, then it has to come out of the DG’s office with regards to either making this process more transparent, making the membership of the committee more—whatever it might be, it’s going to have to come through the DG’s office.
(To the third question) I don’t know, with everybody rallying around the DG now, whether everybody in the DG’s office wants this to go away, and that’s my concern that we’re—we’ll sort of leave this behind as if it’s sort of something in the past that we don’t need to worry about, and that’s where I’m not as sanguine. I think there’s a real problem with the IHR coming out of this because it connects with real problems that came out of Ebola, that came out of H1N1, that we still haven’t fixed.
At what point do we start really questioning the resilience of this regime if time after time after time we’re running in deep problems where this is simply not working the way in which it was intended or the way in which it was worded.
BOLLYKY: Great. Perfectly timed, and, David, I just hope you take from this meeting that there’s a lot of interest in what you have to say in this topic and it’s great to have your thoughts here today. And thanks so much for a great group assembling last minute on a very hot day.
So join me in thanking David. (Applause.)
This is a corrected transcript.