To tier or not to tier: the institutionalization of the World Health Organization’s power to determine pandemic emergency in the amended International Health Regulations (2005)

The binary nature of a Public Health Emergency of International Concern (PHEIC) alert was brought to attention during COVID-19, with the COVID-19 IHR Emergency Committee and some States Parties advocating for an intermediate or regional tier of warning. However, the recent amendments to the International Health Regulations (2005) yielded an unexpected outcome: no proposed lower tier was added to the binary alert framework; instead, 'pandemic emergency' was introduced as a tier of alert within the PHEIC framework. This paper argues that the influence of introducing a 'pandemic emergency' tier within the World Health Organization's alert framework, as outlined in the amendments to the International Health Regulations (2005), has been underestimated. While a proposed intermediate alert received some support, it is unlikely to function effectively in raising awareness or mobilizing resources. In contrast, a 'pandemic emergency' alert-previously framed as a descriptive, non-binding concept -has been perceived as a more effective tool for alerting against communicable disease threats. The formalization of a de facto determination of pandemic emergency results in a de jure expansion of the World Health Organization's emergency powers, demonstrating what is often termed as a 'ratchet effect'. Moreover, the amended International Health Regulations (2005) grant the World Health Organization enhanced legal competences, notably in a binding way. The adoption of the World Health Organization Pandemic Agreement could further extend the legal implications of the World Health Organization's power to determine a pandemic emergency.