National public health law: a role for WHO in capacity-building and promoting transparency

At times of global health emergencies, such as the Ebola and Zika virus disease outbreaks, the world looks to the World Health Organization (WHO) for leadership. When problems are perceived in the handling of a crisis,1,2 there are sometimes calls for changes to the international legal instruments that set the agency’s powers, duties and procedures for action, particularly the International Health Regulations (IHR).3,4 The IHR, which are binding on all WHO Member States, are a logical target for legal concern, since they set out basic rules of international law requiring countries to strengthen their national surveillance and response capacities, and to share important information with the global community.5 We believe, however, that a focus on international law is mistaken. We argue in this paper that the most critical legal need for action in global public health generally, including emergency preparedness, is at the national level. Many nations lack the basic laws and regulations needed to comply with IHR obligations and to support effective public health systems, or have laws that are outdated or poorly designed. Moreover, action to improve legal infrastructure is hindered by the inaccessibility of information about the health laws of nations, which reduces transparency and nations’ accountability for meeting their international obligations. WHO is in a position to provide leadership in improving national legal compliance, transparency and accountability, and in this paper we make the case that it is both legally appropriate and feasible for WHO to do so. National legal infrastructure As WHO and others have stressed, promoting a robust health infrastructure in every country is the most effective long-term preparedness strategy for global health emergencies.1,6 Health infrastructure includes not only the physical structures of public health agencies, clinics and hospitals and the human resources to operate them, but also countries’ legal infrastructure – the laws and policies that empower, obligate and limit government and private action concerning health. A health emergency tests how effectively regulatory strategies, social contract principles and human rights norms have been embodied in the written laws of a country, and how closely, in turn, those legal embodiments guide action.7,8 Disease outbreaks, for example, require a wide range of actions (e.g. disease reporting, surveillance, quarantine, social distancing, curfews, import of medical supplies and personnel, and vector control), all of which are effected through, or subject to, national laws. Governments are also obliged to protect the human rights of individuals affected by an outbreak. This requirement in the IHR for preparedness can be understood as a requirement on Member States to develop the laws and regulations needed to carry out these measures.9 Direct assistance to countries to help them develop their own legal infrastructure and capacity would be more helpful to emergency response than any changes in the wording of the IHR, which were already substantially revise