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Is the spread of Coronavirus already a pandemic?
Unpacking a (legal) definition
On 26 February 2020, the World Health Organization (WHO)’s Director-General, Tedros Adhanom Ghebreyesus stated that the current spread of the coronavirus (SARS-CoV2) “has pandemic potential”. That is, despite the fact that the virus was already reported in all continents except Antarctica, there was still no reason to use the “P” word. He further clarified that declaring it as such would not carry any benefit, rather would only “increase fear and stigma”. This leads to two questions: What are the requirements for an outbreak or epidemic to reach the category of a “pandemic”? And what are the consequences of a pandemic declaration by the WHO for the international community? The conclusion can already be advanced: there is no definitive answer to either question. Yet these two points are discussed in a more detailed fashion in the following lines. What’s behind the definition of “pandemic”? The main document issued by the WHO for pandemic influenza risk management offers a series of operational definitions, including one for “pandemic”. The term is distinguished from a “public health emergency of international concern” as stipulated by the International Health Regulations (more on this legal term here). According to the WHO’s pandemic guidelines, “an influenza pandemic occurs when an influenza A virus… acquires the ability to cause sustained human-to-human transmission leading to community-wide outbreaks. Such a virus has the potential to spread rapidly worldwide, causing a pandemic.” Why is the WHO’s operational definition centered on influenza A? An explanation lies on how past experiences have shown the highest potential for global spread of these viruses. As recalled here, the biggest catastrophe of its kind, the flu of 1918-1919, was caused by an influenza strain. Facing this risk scenario, the WHO has issued a series of guidelines that offered operational definitions of pandemics. In a past version issued in 2005, the main concern was the risk of spread of so-called avian flu (H5N1 influenza), with high mortality rates. Here, the operational definition designed by the WHO included severity amongst its elements. This criterion was later abandoned in a newer version issued in 2009. One reasoning for such a change is that conditioning the declaration of a pandemic to a severity assessment could delay the necessary response measures. Additionally, the 2009 version was framed in general terms, not limited to one specific disease. Lastly, this edition also divided into alert levels, with number 6 representing the ”pandemic phase”. In order to reach this stage, the disease outbreak had to occur in countries from at least two different WHO regions, out of a total of six. At this juncture, the A(H1N1) influenza pandemic of 2009-2010 emerged. On 11 June, 2009, then WHO Director-General issued a pandemic declaration according to the operational definition for the first time. The legal consequences of doing so included, notably, activating “dormant” contracts with pharmaceutical companies for the production of vaccines. Additionally, several countries –though certainly not all– activated national mechanisms. Fortunately, the pandemic had a much less devastating outcome than expected. But, as a result, criticisms were leveled against the WHO, by focusing on its hasty pandemic declaration in benefit of pharmaceutical companies. In light of this experience, the WHO revised, once again, the definition of pandemic in 2013 and in 2017, with the latter being the current version. The major novelty in these two issues has been a focus on influenza. The WHO’s operational definition of “pandemic” is no longer general. Instead, preparedness and response recommendation were elaborated taking the epidemiological features of influenza into account. Given the current juncture, the possible result is that the effectiveness in the use of the definition will be limited. The previous chronology helps in contextualizing the current estimations on whether coronavirus is a pandemic or not. Certainly, such a declaration would not have the same effect as the previous one from 2009, since it would not carry similar legal consequences, as the clauses in dormant contracts would not be applicable to coronavirus. As the race for developing a vaccine goes forward, it remains to be seen which company will be the first one to attain a patent. Be that as it may, the reluctance to declare the spread of coronavirus a pandemic, as explained by the WHO’s Director General, is related to the reaction it would elicit on behalf of governments and the public at large. That is, the externalities of employing the definition are the decisive factor. More than just declarations? Given the features of the WHO’s definition of a pandemic, we could wonder whether the current practically global spread of coronavirus would justify using calling it as such. If the decision not to do so is based on the consequences, should these always be taken into account when employing a definition? Can its use be refused due to pragmatic considerations? And why does a simple expression, verbal or written, by the head of an International organization have so much weight? These questions are embedded in a conceptual background: declarations by institutions such as the WHO can be an exercise of international public authority. The fact that a linguistic act has practical consequences, such as triggering pandemic plans or contractual clauses, turns them into something more than just allocutions. Hence, the role of WHO officials, to whom the international community pays heed for purposes of clarification or guidance, is a particularly critical one. Deference towards their technical expertise also implies that their guidelines will have consequences. Considering what happened during the A(H1N1) influenza pandemic of 2009-2010, the formulation of definitions may either expand or restrict the leeway that either the WHO, Member States or other international, supranational and national actors may have. Beyond the quandary of declaring the current coronavirus crisis as a pandemic or not, the relevance of reliable information ought not to be dismissed. The responsibility of those in the spotlight, particularly public health authorities, is manifest. Therefore, accurate communication to the public is vital. The incorrect use of a definition may lead not only to panic, but also to setting in motion measures with both economic costs and consequences for persons. Not to mention the potential erosion in trust towards authorities. Facing the equally perilous spread of misinformation, as well as overreactions throughout the world, relying upon trustworthy technical assessments, especially in public decision-making, is more necessary now than ever. NOTE: A previous version of this blogpost was published in Spanish in Agenda Pública/El País. Pedro A. Villarreal is Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.
Cite as: Pedro Villareal, Is the spread of Coronavirus already a pandemic? Unpacking a (legal) definition, Völkerrechtsblog, 9 March 2020, doi: 10.17176/20200309-214816-0.