Global public health paper from recent International Studies Association conference

Paper for International Studies Association 49th Annual Convention
San Francisco, 26-29th March 2008
The global governance of infectious disease: WHO and the International
Health Regulations
Not for citation without author’s permission
Simon Rushton,1
Centre for Health and International Relations,
Department of International Politics, Aberystwyth University, UK
email: sbr@aber.ac.uk
1 I am grateful to Adam Kamradt-Scott, Owain Williams, Adrian Kay and the participants in the conference
on ‘The Crisis of Global Health Governance: Challenges, Institutions and Political Economy’ (Griffith
University, Brisbane, 4-5 September 2007) for comments on earlier drafts of this paper.
2
Introduction
Infectious disease accounts for around 26% of all deaths worldwide2 and is one of the
prime examples of a globalized issue requiring a global response. AIDS, for example, has
contributed to more than 2.9 million deaths in 20063 alone. It has been estimated that a
new influenza pandemic could kill up to 150 million people.4 With the various economic,
demographic and technological changes which globalization has brought the threat
appears ever more acute.5
Infectious disease is not, of course, a new problem. Neither is interstate cooperation in this
area a novel phenomenon – the first concerted attempt to coordinate international action in
this area was as long ago as 1851.6 Yet the global governance of infectious disease
continues to generate controversy, and in doing so neatly encapsulates some of the
tensions inherent in Global Health Governance more generally. In particular, any
international system designed to reduce the threat posed by the international spread of
infectious disease potentially comes into conflict with two other political priorities which
are central to the contemporary international system: the national interests of individual
states (and in particular their concerns over security and sovereignty) and; the desire to
achieve a liberalize trade regime.
This paper examines the development of the International Health Regulations (IHR) – and
in particular the process of revising them which led to the agreement on a new version of
the regulations in 2005, which came into force in 2007.7 In doing so it investigates the
extent to which the regulations – the cornerstone of the contemporary global governance
2 Global Health Council (2006) ‘Infectious diseases’, online
http://www.globalhealth.org/view_top.php3?id=228
3 UNAIDS/WHO, AIDS Epidemic Update: December 2006, p.64. Available from
http://www.unaids.org/en/HIV_data/epi2006/default.asp
4 David Nabarro, Press Conference, United Nations, 29 September. 2005.
http://www.who.int/mediacentre/news/releases/2005/pr45/en/
5 Lance Saker, Kelley Lee, Barbara Cannito, Anna Gilmore & Diarmid Campbell-Lendrum, ‘Globalization
and Infectious Diseases: A Review of the Linkages’ (Geneva: World Health Organization/Special
Programme for Research and Training in Tropical Diseases, 2004).
6 For example, David P. Fidler, ‘The globalization of public health: the first 100 years of international health
diplomacy’, Bulletin of the World Health Organization vol. 79 (2001), pp.842-9.
7 WHA58.3, ‘Revision of the new International Health Regulations’.
3
of infectious disease – succeed in ‘squaring the triangle’ of effective global disease
control, national interest and free trade.
In connection with the relationship between the global governance of infectious disease
and the national interests of states it has been argued in recent years, most notably by
David Fidler, that there has been a major shift in the global governance of infectious
disease. Fidler cites the SARS outbreak of 2002-3 and the response of the international
community to it as a watershed between the traditional framework (which had persisted
since 1851) and a radically new ‘post-Westphalian’ health governance system.8 Whereas,
Fidler argues, ‘Westphalian’ public health was characterised by the traditional principles
of “sovereignty, non-intervention, and consent-based international law”9, he claims the
new system – institutionalised by the revised IHR - represents a move away from such
state-centrism. Non-state actors now play increasingly important roles and are widely
recognised as legitimate governance actors.10 For some this is an important step forward in
the fight against globalized disease threats. For others it is a potentially dangerous
intrusion on state sovereignty.11
This paper questions whether the new IHR are indeed as much of a break from the statecentric
past as Fidler and others claim. It will be argued that whilst there is much that is
new in the revised IHR many of the features of ‘Westphalian Public Health’ stubbornly
persist. In particular states and their borders remain central to international efforts to
control infectious disease and concerns about the threat posed by infectious disease must
always jostle for position with other political, economic and strategic interests. The WHO
continues to be dominated to a large extent by its member states despite having seen its
role increase under the new IHR.
8 David P. Fidler, SARS, Governance and the Globalization of Disease (Basingstoke: Palgrave Macmillan,
2004); David P. Fidler, ‘SARS: Political Pathology of the First Post-Westphalian Pathogen, Journal of Law,
Medicine and Ethics vol.31(4) (2003), pp.485-505.
9 Fidler, SARS, Governance and the Globalization of Disease p.47.
10 Fidler, SARS, Governance and the Globalization of Disease, esp. Chapters 3 and 4.
11 Eric Mack, ‘The World Health Organization’s New International Health Regulations: Incursion on State
Sovereignty and Ill-Fated Response to Global Health Issues’, Chicago Journal of International Law vol.7
(2006-7), pp.365-378.
4
In relation to the tensions between effective infectious disease control and the prevailing
norms of liberal free trade, the paper examines the extent to which the revised IHR are
compatible with other international regimes – in particular the WTO trade regime. It is
argued that, whilst strenuous efforts have been made to reconcile the demands of trade and
health, the IHR 2005 may not have done so successfully. Although they are an attempt to
respond to the negative health impacts of certain globalization processes, they attempt to
accommodate economic globalization rather than challenge it. Whilst it is too soon to tell
how this tension will play out over time, there are indications that trade concerns may
dominate public health, leading to sub-optimal health outcomes.
The negotiations over the revision of the IHR were a difficult process. But they are
unlikely to be the end of the issue. Whilst the IHR 2005 in many respects represent a
significant advance over the previous regulations they are likely to be the starting point for
a period of even fiercer international debate over the global governance of infectious
disease.
The Global Governance Of Infectious Disease
One of the key insights of the literature on global governance is its willingness to look
beyond the traditional subjects of International Relations scholarship: to broaden the frame
to encompass more than merely the actions of states and the formal International
Organizations which they create. As James Rosenau warned,
“understanding is no longer served by clinging to the notion that states and
national governments are the essential underpinnings of the world’s organization.
We have become so accustomed to treating these entities as the foundations of
politics that we fall back on them when contemplating the prospects for
governance on a global scale, thereby relegating the shifting boundaries, relocated
authorities, and proliferating NGOs to the status of new but secondary dimensions
of the processes through which communities allocate and frame policies.”12
12 James N. Rosenau, ‘Towards an Ontology for Global Governance’ in Martin Hewson & Timothy J.
Sinclair (eds.), Approaches to Global Governance Theory (Albany, NY: State University of New York
Press, 1999), pp.287-8.
5
The concept of Global Health Governance has sought to respond to this problematization
of traditional approaches and to take account of the ‘shifting boundaries’ and ‘relocated
authorities’ which characterise the post-Cold War world. One of the central distinctions
that has been drawn is between ‘International Health Governance’ and ‘Global Health
Governance’.13 The former term refers to the ‘traditional’ forms of inter-state cooperation
on health through diplomacy, treaty-making and the creation of international institutions
such as the WHO (activities which Fidler would define as ‘Westphalian’). The latter refers
to something which transcends this state-centric framework and which has the necessary
descriptive and analytical purchase to take account the new realities of the era of
globalization. The marked linguistic shift away from ‘international health’ towards ‘global
health’ in both the academic literature and policy pronouncements gives a clear indication
of the impact of globalization on both the conceptualisation of health as an issue and the
willingness of bodies such as the WHO to collaborate with a broader range of
international actors.14 Thus, it has been widely noted that a range of nonstate actors –
including other IOs, private corporations and civil society groups – have increasingly
come to play important roles in governing global health.
Yet, for better or worse, in many areas of international life - including important areas of
health policy - states remain the key actors and IOs represent the principal site for (and
often important actors in) international cooperation. States and IOs create and legitimize
the international rules, norms, principles and procedures which constitute the mechanisms
for the global governance of infectious disease. States may not always have the capacity to
provide effective responses to global health problems, and they may recognise the need to
collaborate with non-state actors in order to achieve their objectives, but their power to set
the terms of the debate and to determine the framework within which infectious disease is
conceptualised as a global issue is unrivalled. Governments actively seek to maintain
control of the direction of global policy in this area according to their own priorities and
perceived interests. Notwithstanding a great deal of rhetoric on the need to respond more
13 See Kelly Loughlin & Virginia Berridge, ‘Global Health Governance: Historical Dimensions of Global
Health Governance’ (Geneva: World Health Organization/Special Programme for Research and Training in
Tropical Diseases, 2002).
14 Theodore M. Brown, Marcos Cueto & Elizabeth Fee, ‘The World Health Organization and the Transition
from ‘International’ to ‘Global’ Health’ in Alison Bashford (ed.), Medicine at the Border: Disease,
Globalization and Security, 1850 to the Present (Basingstoke: Palgrave Macmillan,
6
effectively to the challenges of globalization, they are generally keen to oppose any
dilution of their authority.
This tendency is particularly prevalent in the particular subfield of Global Health
Governance under investigation here. Undoubtedly this is a result of the fact that
infectious disease more than any other health issue has historically been linked to notions
of security, and in particular to the protection of the domestic population from external
threats.15 Preventive quarantine measures aimed at precisely this purpose have been a
feature of international travel and trade since at least 1377, the year in which the Venetian
Republic introduced an isolation period for ships and land travellers arriving at the port of
Ragusa (now Dubrovnik) from plague-affected areas.16 As such, the protection of the
domestic population and economy from the effects of infectious disease goes to the very
heart of what a state is for. As international travel and trade increased a widespread
recognition developed that states could not unilaterally defend their borders from the
ingress of disease, at least not without isolating themselves from the global economy. The
results of this realisation have been seen in a succession of international collaborative
measures to combat infectious disease, from the International Sanitary Conference of 1851
to the IHR of 2005.
Infectious disease is far from the only international issue with the potential to threaten
population health and in other areas, from the globalization of food production to the
liberalisation of health services, states have not seen their security as being at stake in the
same way. So why is it that infectious disease has come to be framed in security terms
when obesity or tobacco-related diseases (to take two globalization-related health
problems) generally have not? A possible explanation is that infectious diseases genuinely
do constitute a greater (or perhaps more immediate) threat than other health challenges.
The 2007 World Health Report noted that “an outbreak or epidemic in one part of the
15 Many of the clearest examples of this tendency originate in the US. See, for example, National
Intelligence Council, ‘The Global Infectious Disease Threat and Its Implications for the United States’ (NIE
99-17D, January 2000); Gary Cecchine & Melinda Moore, ‘Infectious Disease and National Security:
Strategic Information Needs’ (RAND Corporation, 2006).
16 Gian Franco Gensini, Magdi H. Yacoub & Andrea A. Conti, ‘The concept of quarantine in history: from
plague to SARS’, Journal of Infection vol.49 (2004), pp.257-61.
7
world is only a few hours away from becoming an imminent threat elsewhere.”17 And the
potential consequences or major outbreaks are difficult to ignore: Deane Edward
Neubauer noted in a 2005 article that a disease may “present itself with such threat and
virulence that its consequences to existing society cannot be ignored. In the face of this
manifest crisis … public health intervention will go to the top of the policy list.”18
In practical terms maintaining security is not straightforward. There is a widespread
recognition that in a globalized world states cannot rely on creating a ‘Maginot line’ to
halt disease at their borders.. Rather, states need to to act collaboratively when outbreaks
occur, necessitating both political will and the existence of robust public health
mechanisms at international, state and sub-state levels. Security from disease – in so far as
such a thing is possible at all – can only be achieved through sustained international
cooperation and the coordination of surveillance mechanisms and, when outbreaks occur,
a system for putting in place measures to prevent local crises from becoming global crises.
Inevitably this entails reconciling concerns over sovereignty and security with wider
public health goals.
International trade and travel are frequently identified as important vectors in disease
transmission and are the primary focus of the IHR. Yet they are also the basis of the global
economy. As a result of these competing priorities, the contemporary architecture of the
global infectious disease governance is a relatively ‘weak’ program of global
governance.19 Its aim is to put in place rules, polices and processes to mitigate the
undesirable disease-related effects of globalization. It is not concerned with challenging
the status quo on a normative basis. Whilst it is clearly desirable to limit the damage done
by infectious disease this remains only one of a range of competing international priorities
and interests.
The tensions between the competing priorities of state sovereignty and security,
international trade and effective disease control came to the fore during the IHR revision
17 WHO, The world health report 2007
18 Deane Edward Neubauer, ‘Globalization and Emerging Governance Modalities’, Environmental Health
and Preventive Medicine vol.10 (2005), p.292.
19 Neubauer, ‘Globalization and Emerging Governance Modalities’ p.290
8
process. Subsequently a further series of debates over the appropriate forms of global
infectious disease governance, and the rights and duties of states and other actors engaged
in that enterprise, have taken place. Whilst the IHR 2005 are undoubtedly a dramatic step
forward as compared with their predecessors they were not created in a political vacuum.
Thus what they represent is a compromise between the requirements of effective
infectious disease control and the perceived interests of the states which created them.
These two were not always aligned, and in some instances the latter overrode the former.
The Westphalian system is far more resilient than Fidler claims, and health will not always
trump trade-related considerations.
Revision Of The IHR: New Threats, Old Problems
The immediate ancestry of the International Health Regulations lies in the International
Sanitary Regulations (ISR) adopted by the fourth World Health Assembly in 1951. In
1969 the ISR were amended and renamed the IHR.20 The IHR 1969 subsequently
remained more or less unchanged until the major revisions agreed in 2005.21 These two
versions of the IHR are very similar in the overall framework which they set out. The
central purpose is to put in place rules and procedures to allow certain key tasks to be
carried out effectively, namely: disease surveillance; outbreak reporting; dissemination of
information and; structuring and managing international responses. Through this the IHR
were intended to achieve that maximum possible degree of public health protection while
– an important secondary requirement – causing the minimum possible disruption to
international trade and transport.
The IHR 1969 required the health ministries of member states to notify the WHO within
twenty-four hours of being informed of any case of a disease subject to the regulations
occurring on their territory (Article 3). For the purposes of IHR 1969 the only such
diseases were cholera, plague, yellow fever and (until its removal from the regulations in
20 World Health Organization, International Health Regulations (1969) (Third Annotated Edition) (Geneva:
WHO: 1983).
21 There were slight amendments made to the IHR in 1973 (relating to cholera) and again in 1981 (which
removed smallpox from the regulations following its eradication). However, the regime remained essentially
unchanged.
9
1981) smallpox. States affected by an outbreak of one of these diseases were required to
keep the Organization informed on a weekly basis of the number of cases/deaths in the
preceding week (Article 9). A further notification was required when the affected area was
deemed to be free from infection (Article 7). Over time it became increasingly clear that
this limited list of notifiable diseases was ill-suited to the proliferating disease threats
characteristic of a globalized world economy.
To further compound the shortcomings of the IHR 1969 states did not always fulfil their
treaty obligations. The WHO lacked any independent investigatory capacity or mandate,
nor did it have sanctions at its disposal when states failed to report a notifiable outbreak.
The lack of enforcement capacity formed the basis of many critiques of the IHR 1969
regime.22 Equally problematic were cases in which states did report outbreaks and other
states responded in extreme ways prohibited under the regulations. Richard A. Cash and
Vasant Narasimhan have examined two cases in which developing countries did report
cases of the relevant diseases to the WHO: a 1994 outbreak of plague in Gujurat, India and
a cholera epidemic in Peru in 1991.23 In both cases the affected countries fulfilled their
obligations under the IHR 1969. On both occasions, however, other states far exceeded the
permissible responses, taking measures which included stopping food imports, cancelling
flights and issuing travel advisories. Cash & Narasimhan cite estimated economic losses at
approximately US$2 billion in the Indian case and US$770 million in trade alone in the
Peruvian case.24 The disincentives for compliance were obvious.
Despite this, most states did fulfil their obligations most of the time. Indeed in some
instances states went beyond what was legally required of them. At the time of the SARS
outbreak of 2003 - an event recognised worldwide as a public health crisis requiring an
exceptional response - the IHR 1969 were still in force. Under that regime SARS did not
fall within the category of a ‘notifiable disease’. Nevertheless, almost all member states
22 Bruce Jay Plotkin & Ann Marie Kimball, ‘Designing an International Policy and Legal Framework for the
Control of Emerging Infectious Diseases: First Steps’, Emerging Infectious Diseases vol.3(1) (1997),
http://www.cdc.gov/ncidod/eid/vol3no1/plotkin.htm.
23 Richard A. Cash & Vasant Narasimhan, ‘Impediments to global surveillance of infectious diseases:
consequences of open reporting in a global economy’, Bulletin of the World Health Organization ol.78(11)
(2000), pp.1358-67.
24 Cash & Narasimhan, ‘Impediments to global surveillance’, pp.1362-3.
10
willingly reported cases on their territories and cooperated fully with the WHO.25 There
was, of course, one exception to this: the People’s Republic of China, which failed at first
to report the outbreak and initially resisted international cooperation through the WHO. As
Jonathan Watts noted at the time, this was a product of the fact that “the disease has honed
in on the regions where China’s political antibodies are least able to cope with criticism:
Taiwan, government secrecy, an overemphasis on economic growth, and the gulf between
the wealthy urban centres and the poor provinces.”26 As a result, despite a massive
subsequent public health effort, China was the last state to bring the SARS outbreak under
control.
Clearly, then, the ways in which perceived national interests, economic and trade-related
concerns and disease control combine and interrelate are highly complex. On the one
hand, states have a clear vested interest in the functioning of the international infectious
disease regime: the system only works when states report cases occurring within their
territories. As such, international cooperation effectively becomes a means of enhancing
national security from disease threats. Nevertheless, under the IHR 1969 this did not
always mean that compliance with the IHR overrode other interests, with states in some
cases finding that disclosure of a disease outbreak – and the consequences of that
disclosures - were a threat to their sovereignty and/or their economic interests.27
New regulations for a new era
Non-compliance was not, however, the only problem which led to the revision of the IHR.
Even more pressing was a perceived need to update the regulations by expanding the list
of infectious diseases covered.28 Accordingly the most significant changes related to
precisely these issues. The revision process stretched out over more than a decade. In 1995
the World Health Assembly passed a resolution calling on the Director-General to begin
25 Angus Nicoll, Jane Jones, Preben Savitsland & Johan Giesecke, ‘Proposed new International Health
Regulations’. Editorial. The Lancet vol.330 (12 Feb 2005), pp.321-2.
26 Joanthan Watts, ‘China takes drastic action over SARS threat’, The Lancet vol.361 (May 17 2003),
pp.1708-9.
27 Philippe Calain, ‘Exploring the international arena of global public health surveillance’, Health Policy and
Planning vol.22 (2007), pp.2-12.
28 e.g., World Health Assembly, ‘Revision and Updating of the International Health Regulations’ WHA48.7
(12 May 1995);
11
preparing a revised version of the regulations.29 A lengthy consultation ensued.30 The
revision process was given a new impetus following the SARS outbreak of 2003 which
underlined the deficiencies of the existing system and the need to introduce a more robust
set of regulations. There followed a concerted period of regional consultations followed by
negotiations within an Intergovernmental Working Group (IGWG) in November 2004 and
February 2005. The eventual outcome of the process was a set of regulations which
represented a step beyond the IHR 1969 in important ways. In particular, meaningful
advances were made over two key issues which will be briefly examined here: the range
of diseases covered by the regulations and; the mandate given to the WHO to receive and
act upon information from non-governmental sources.
During the negotiations it was generally agreed that is was necessary to expand the range
of diseases covered by the IHR and to ‘future proof’ them by allowing them to retain their
applicability in the face of future emerging or re-emerging infectious disease threats.
Precisely how this should be achieved was a matter of some debate.31 The eventual
solution was an algorithm for states to employ in determining whether or not a particular
event represents a “public health emergency of international concern” (and therefore
whether or not it is ‘notifiable’). This ‘decision instrument’ divides infectious diseases into
three distinct categories: those which are of international concern per se (including
smallpox, new subtypes of human influenza and SARS); named diseases for which states
are required to make a decision according to the decision instrument (including cholera,
pneumonic plague and yellow fever); and other unnamed (and perhaps as yet unknown)
disease events which may in future constitute international public health emergencies (see
Figure 1). As can be seen from the decision instrument, in cases of the latter two
categories of public health event the affected state is required to give consideration to a
variety of issues: whether or not the event is “serious”; whether it is “unusual or
unexpected”; whether there is a “significant risk of international spread” and; whether or
not there is a “significant risk of international travel or trade restrictions.”
29 WHA48.7.
30 See, for example: World Health Organization, ‘Report of a WHO informal consultation: The international
response to epidemics and applications of the International Health Regulations’ WHO/EMC/IHR/96.1
(1996); WHO ‘Revision of the International Health Regulations: Progress Report’ A51/8 (10 March 1998).
31 Philippe Calain, ‘Exploring the international arena of public health surveillance’, Health Policy and
Planning vol.22 (2007), p.4.
12
FIGURE 1: IHR 2005 Decision Instrument
(Source: International Health Regulations 2005, Annex 2).
As a result of this arrangement states are required to exercise considerably more
judgement than was the case with the 1969 version of the IHR. There is a prima facie case
that the discretion granted to member states is likely to lead to some inconsistency of
reporting. Furthermore, states require a considerable amount of information on a disease
13
event in order to be able to utilise the decision instrument effectively. Not all states
currently have the required infrastructure at all levels of government to fulfil this
surveillance and data-processing requirement within the specified timescales, an issue
which will be addressed further below.
Significantly, under Article 12 it is not only member states but also the WHO’s Director-
General who has the power to determine whether a situation constitutes a ‘public health
emergency of international concern’. This hands a considerable amount of authority to the
WHO and, in theory at least, has the potential to mitigate any inconsistency in the ways in
which states apply the decision instrument.
Another novelty in the IHR 2005 – and the major attempt to circumvent the problem of
states failing to fulfil their reporting obligations - is that the WHO is given the explicit
authority to respond to information received from non-governmental sources (although in
practice this had been happening on an ad hoc basis for some years).32 As Guénaël Rodier
– the WHO’s director of IHR coordination – noted, “Today, events are often initially
reported, not by a Member State, but by non-official sources such as the media, NGOs … ,
our network of collaborating centres, laboratory networks and partners in the field.”33
Under the IHR 2005 the WHO is required to pass such information on to the state
concerned and to seek verification. But even where the state refuses to cooperate it is in
certain circumstances possible for the WHO to disseminate the information to other
member states (Article 10(4)). It is therefore possible for a situation to arise under the
treaty where the WHO publishes information about a public health emergency of
international concern even when the state on whose territory the outbreak has allegedly
occurred does not acknowledge the existence of any such event. By the same token,
international action can be taken even where states lack the capacity to fulfil their
reporting obligations.
32 The Global Outbreak Alert and Response Network (GOARN) was formally launched in 2000, and even
before that the WHO regularly made use of non-state information sources.
33 ‘New rules on international public health security’, Bulletin of the World Health Organization vol.85(6)
(June 2007), p.428.
14
So what can we make of these new provisions for identifying and reporting disease events
of international concern? The view of Fidler and Gostin is clear: that “the information and
verification provisions privilege global health governance over state sovereignty.”34 This is
certainly true up to a point. There is now a legitimate basis for the WHO to take action in
cases where a state has failed to notify it of an outbreak. Indeed to some extent the WHO
has taken on a global surveillance function. Through the development of the Global Public
Health Intelligence Network, a search engine developed by Public Health Canada and the
WHO designed to find online news reports of unusual disease outbreaks, the WHO has
begun making use of the internet - a truly globalized information resource - to glean
information on significant public health events. And even where a member state disagrees
with the Director-General’s determination the state is only given the right to make
representations to the ‘Emergency Committee’, a body composed of experts selected by
the Director-General (albeit sanctioned by the member states). The final decision remains
with the Director-General (Article 49(5)). Thus the WHO bureaucracy and not the
member states has the final authority to issue determinations and recommendations which
formally bind member states, and can do so even where such actions are contrary to the
expressed wishes of a member state. These provisions, Fidler and Gostin suggest, may
help to tilt the balance in favour of compliance with the IHR: if the likelihood is that the
outbreak will be reported to WHO in any case then there is a greater incentive for states to
ensure that they are the ones who do the reporting.35
There has certainly been a ceding of greater authority to the WHO. These changes also
provide the WHO with a considerable degree of ‘soft power’. Not only is the organization
both the hub of and an actor in the global infectious disease surveillance system, it is also
given the ability to define what constitutes a crisis and as a consequence, to some extent at
least, to set the global agenda in relation to infectious disease. It also allows the WHO to
mobilize other techniques – shaming and communicating directly with the domestic
34 David P. Fidler & Lawrence O. Gostin, ‘The New International Health Regulations: An Historic
Development for International Law and Public Health’, Journal of Law, Medicine & Ethics vol.34(1)
(2006), p.90.
35 Fidler & Gostin, ‘The New International Health Regulations’, p.90.
15
constituency of an errant state being two examples36 – to further encourage compliance
and to bolster the effectiveness of the infectious disease governance system.
There is, then, something to be said for the claim that the IHR 2005 represent something
genuinely new. And above and beyond the WHO’s newly acquired role in carrying out its
own surveillance activities and in deciding whether or not an outbreak falls under the IHR
regime it has been given the task of supporting states in developing the infrastructures
necessary to implement the regulations, where necessary effectively ‘teaching’ states how
to run a disease surveillance system.37 On the flip side, the WHO’s role is now far more
explicitly defined than it had previously been with, arguably, less scope for it to act on an
ad hoc basis as it did with the issuing of travel advisories during the SARS outbreak of
2003. The revised IHR both enable and constrain the organization.
In all of these ways the IHR is a significant break from the past. But does this equate to a
fundamental change in the global governance of international health: has there really been
a transition from a ‘Westphalian’ to a ‘post-Westphalian’ system? And have the
potentially contradictory demands of free trade and effective disease control been
reconciled? It is tempting to get carried away in declaring the dawn of a new era, but it is
easy to forget that it is precisely the Westphalian system on which the whole IHR regime
rests. The regulations apply only to international disease threats. With the exception of the
diseases specified as automatically notifiable, where there is no risk of international spread
nor a risk of international restrictions on travel or trade then the outbreak is not classed as
notifiable. It may be argued that the logic of globalization dictates that significant disease
events rarely have absolutely no potential international impact, but it remains the case that
purely domestic public health events do not fall under the regulations. The IHR, then, are
concerned less with global health than with pathogens crossing borders. Whilst the revised
regulations have led states to cede a greater degree of authority to the WHO this has been
36 These methods of encouraging compliance have been found to be extremely effective in relation to other
international regimes. See, for example, Andrew Moravcsik, ‘Explaining International Human Rights
Regimes: Liberal Theory and Western Europe’, European Journal of International Relations vol.1(2)
(1995), pp.157-189.
37 Whilst this instance of an IO having a potential role in reforming the domestic structures of its own
member states is a notable one, it is not unique. See, for example, Martha Finnemore, ‘International
Organizations as Teachers of Norms: The United Nations Educational, Scientific and Cultural Organization
and science policy’, International Organization vol.44(4) (1993), pp.565-597.
16
done in the service of a rather traditional aim: the protection of the nation-state from
exogenous disease threats. The IHR regime does not aim to tackle diseases at source. It
certainly does not seek to address the economic and social determinants of ill health.
Those who drafted the 1851 International Sanitary Conventions would have readily
recognised the underlying purposes of the IHR 2005.
Stumbling blocks in the negotiation process: national interests, sovereignty and security
Although there was general agreement on the aims to be achieved, the revision process
itself was highly contested with some very traditional realpolitik issues coming to the fore.
It is worth reflecting on two of these which, taken together, suggest that states are far less
willing to place international cooperation on disease control above their other interests
than the heralds of the new dawn would suggest.
The question of sovereignty commonly arises in international negotiations, and again the
need to balance cooperation with sovereignty became an issue in the revision of the IHR.
Reminding his colleagues of this fact in addressing the Second IGWG meeting, the PRC’s
Ambassador stated that
“It should be stressed that the WHO, as one of the UN Specialized Agencies,
is formed of sovereign states. The negotiation for the revision of the IHR is a
negotiation among sovereign states. The IHR can only be widely accepted and its
universal applicability ensured when member states have reached a consensus on
its revision. For a member state, sovereignty and territorial integrity is of
fundamental and utmost importance. Therefore, respect for sovereignty and
territorial integrity is the very basis of the IHR and the international cooperation on
disease prevention. Nothing in the IHR should harm or compromise the
sovereignty and territorial integrity of member states. My delegation can only
consider to accept a consensus, provided this precondition is met.”38
Perhaps predictably, the issue of Taiwan’s inclusion in the revision process – and its status
vis a vis the regulations themselves – was a major problem for China. This was the
continuation of one of the longest-standing disputes political disputes at the WHO.39 It was
particularly prominent at the time of the negotiations over the IHR as Taiwan was one of
38 Ambassador Sha Zukang, Statement at the opening plenary of the second IGWG meeting on the revision
of the International Health Regulations, Geneva, 21 February 2005. Available at http://chineseembassy.
org.uk/eng/wjb/zwjg/zwbd/t187223.htm
39 China has effectively excluded Taiwan from engaging in formal international health cooperation since
1972 despite the backing of the US for Taiwan’s case See Siddiqi, World Health and World Politics, Ch.16.
17
the territories most severely affected by SARS. In that case the PRC initially prevented the
WHO from sending representatives to Taipei, although it ultimately relented. The
resulting WHO delegation was the first to visit the island for 30 years.40 Any hopes that
this would lead to a breakthrough in the inclusion of Taiwan in the IHR process, however,
were short lived. Taiwan’s request to participate in the November 2004 and February 2005
meetings of the IGWG were denied due to the opposition of the PRC. Taiwan is not a
signatory of the IHR.41 The issue of whether or not the IHR apply to Taiwan is a complex
one. Article 3 states “the goal of their universal application for the protection of all people
of the world” but Taipei and Beijing differ in their view as to whether or not this gives
Taiwan the right to be treated as a de facto signatory.42
The IHR rely on their universality in order to be effective. As a Lancet editorial argued in
2007, “For the IHR to work, no territory – whether Taiwan or the occupied Palestinian
Territory – can be excluded from the global surveillance system”.43 The obvious irony is
that, as Taiwan’s closest neighbour, and given the increasing flow of goods and people
between the two territories, the PRC is perhaps most at risk from this hole in the global
disease surveillance net.44 As such, this is a clear instance of the perceived political
interests of one member state having a negative impact upon the development of effective
Global Health Governance structures.
There was further controversy during the revision process over the security implications of
the IHR, particularly as they related to non-natural public health emergencies of
international concern. In particular there were lengthy negotiations over the extent to
which the regulations should apply to releases (whether deliberate or accidental) of
biological, chemical and radiological agents.45 This is an area in which the WHO had a
track record, with the first edition of its guidance on responding to biological and chemical
40 ‘Let Taiwan into the WHO’, Wall Street Journal, May 7 2003.
41 Melody Chen, ‘Officials discover resistance to IHR bid in Geneva’, Taipei Times, Tues. 9 November
2004, p.3.
42 Fidler & Gostin, ‘The New International Health Regulations’, pp.92-3. In practice Taiwan has pledged to
abide by the IHR.
43 The Lancet, ‘International Health Regulations: the challenges ahead’, The Lancet vol.369 (May 26 2007),
p.1763.
44 Sheng-Mou Hou, ‘Taiwan-China health partnership is urgently needed for all’, The Lancet vol.369 (April
21 2007), pp.1345-6.
45
18
weapons having been issued in 1970.46 Nevertheless, it was one of the most politically
controversial areas of negotiation. The inclusion of intentional releases of infectious
diseases under the IHR had the potential to embroil the WHO in some highly sensitive
areas, potentially including the investigation of whether or not states were guilty of
breaching the Biological Weapons Convention. The US and its allies were strongly
supportive of the idea that the WHO should take the lead in investigating suspected
bioterror events. This was resisted by developing nations who saw in this both a
potentially troubling requirement to provide the WHO with sensitive security information,
and a real danger of the organization’s role becoming politicized leading to the downfall
of the surveillance system.47 As John Woodall argued in a letter to The Lancet, “If
countries should perceive WHO staff or consultants as intelligence agents with a dual
responsibility to investigate treaty violations as well as health matters, the result could be
unwillingness to report outbreaks at their onset and reluctance to request the help of WHO
or permit its entry.”48
No agreement was reached. As a result, the WHO’s mandate to investigate bioterrorist
incidents is uncertain under the revised IHR. In the event of future incidents of this kind it
seems likely that the issue will arise again. In terms of the negotiations, however, the
failure to make progress on this matter demonstrates the fact that the states involved were
making conscious and deliberate trade-offs between their sovereignty and security
concerns on the one hand, and the requirements of effective public health cooperation on
the other. Whilst a strong regime for the global governance of infectious disease has
certain security benefits for states, it does not automatically trump their other interests.
Neither does it remove the potential for international suspicions and jealousies to come to
the fore: another running theme through the negotiation process was disquiet about the
close relationship between the WHO and the US (in particular the Centers for Disease
46 WHO, Health aspects of chemical and biological weapons: report of a WHO group of consultants
(Geneva: WHO, 1970).
47 Erika Check, ‘Global health agency split over potential anti-terrorism duties’, Nature vol.434 (7 April
2005), p.686.
48 John P. Woodall, ‘WHO and biological weapons investigations’, The Lancet vol.365 (February 19 2005),
p.651.
19
Control and Prevention) which was seen as having privileged access to WHO’s
surveillance networks, with further potential security and intelligence implications.49
Trade v Health
As well as requiring the reconciliation of the tensions between sovereignty, security and
public health, the revision of the IHR also entailed the striking of a balance between the
requirements of an effective disease control system and the potential impact of such a
system on international travel and trade. It is clear that these two things lead to potentially
contradictory actions on the part of states and other international actors. As noted above,
in both their 1969 and 2005 incarnations the overall purpose of the IHR was to maximise
public health protection on the one hand, and avoid causing unnecessary interference to
international travel and trade on the other.50 As well as being a difficult tightrope to walk,
this brings the WHO into a field in which it is far from the only actor. The World Trade
Organization (WTO) has an obvious importance here, perhaps most notably through the
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).51 Indeed,
Fidler argues that, prior to the revision process and during the IHR 1969’s long decline
into virtual irrelevance, the WTO became a more important agent in infectious disease
policy than the WHO itself.52
Inevitably the IHR and the relevant WTO regulations approach the problem of infectious
disease from opposite directions. The WTO’s primary mission is the negotiation of trade
liberalization agreements. International disease outbreaks have historically interrupted the
flow of free trade and thus fall within its remit. The key issue for the WTO – and central
to the SPS Agreement - is allowing states the right to put in place measures to protect
health but at the same time preventing that from being used as a spurious basis for
49 Calain, ‘Exploring the international arena of public health surveillance’, p.6.
50 The wording has remained almost the same. The purpose of the 1969 IHR was “to ensure the maximum
security against the international spread of diseases with a minimum interference in world traffic.” In the
2005 revision this was changed in only minor ways: “to prevent, protect against, control and provide a
public health response to the international spread of disease in ways that are commensurate with and
restricted to public health risks, and which avoid unnecessary interference with international traffic and
trade.” Foreword, International Health Regulations (1969) (3rd edn.) (Geneva: WHO, 1983), p.5;
International Health Regulations (2005), WHA58.3, Article 2.
51 For a comparison of the provisions of the SPS and the IHR see WHO, ‘Revision of the International
Health Regulations: Public Health and Trade’, Weekly Epidemiological Record no.25 (1999), pp.193-201.
52 David P Fidler, ‘Emerging Trends in International Law Concerning Global Infectious Disease Control’,
Emerging Infectious Diseases vol.9(3) (2003), pp.285-290.
20
protectionist trade measures. The WHO, by contrast, is charged with promoting health,
although in the IHR it recognizes that this should not be allowed to lead to overly
restrictive traveal and trade measures which have no scientific basis. There were concerted
efforts from an early stage in the revision of the IHR to ensure the consistency of the IHR
and the SPS Agreement and to minimise the potential for conflicts between the two. The
different perspectives which underlie the two agreements may not, however, lead to
agreement over their application to particular cases.53
Article 57(1) of the IHR 2005 provides that “States Parties recognize that the IHR and
other relevant international agreements should be interpreted so as to be compatible. The
provisions of the IHR shall not affect the rights and obligations of any State Party deriving
from other international agreements.” On the face of it this would appear to provide a
legal basis for the primacy of the WTO trade regime over the IHR in cases where the two
come into conflict. Furthermore, given the fact that the WTO has a significantly more
advanced dispute settlement system in place than the WHO it seems highly likely that a
member of the WTO which feels that unduly restrictive measures have been put in place
in response to a public health emergency of international concern occurring on its territory
(and, as we have seen above, such ‘over-reactions’ have been historically prevalent)
would take its case to the WTO. In the past in disputes where health and trade collide the
WTO has tended to privilege trade over public health.54
Problems yet to come: implementing the IHR
The implementation of the IHR will in many ways be as difficult as the revision process.
A lack of clarity over the application of the new regulations in specific instances remains,
and this will undoubtedly be determined through future practice. As is often the case in
such situations, power – both political and economic – is likely to play an important role
in determining outcomes.
53 Ann Marie Kimball, Bruce Jay Plotkin, Tabitha A. Harrison and Nedra Floyd Pautlet, ‘Trade-related
Infections: Global Traffoc and Microbial Travel’, EcoHealth vol.1 (2004), p.46.
54 The case of the EU ban on imported beef containing artificial growth hormones, in which the WTO
dispute panel rules against on the basis of the absence of a scientific basis for the ban, was one notable
instance of this trend.
21
Although the regulations have been in force for less than a year there are already
indications that the contestation is beginning. At a meeting of the WHO Executive Board
in March 2007 Brazil objected to the use of the term ‘global health security’ which has
been frequently linked with the IHR (although the term does not appear in the regulations
themselves). Brazil argued that there is no agreed definition of ‘global health security’ and
that there was not a consensus of support for it within the World Health Assembly.55 The
US and the EU – both of which have strongly backed the concept – had seen a previous
attempt (in November 2007) to include it in a draft statement on virus sharing blocked due
to the similar concerns of developing countries over the implications of linking health to
the concept of security.56 This issue is indicative of a growing level of debate over who has
the power to set the global health agenda, and the interests which mechanisms such as the
IHR serve. For those promoting the term, ‘global health security’ means protecting the
world from epidemics like SARS and pandemic influenza. Yet many states lack the ability
to protect their citizens from everyday health threats and are concerned that the idea of
global health security is being used to push through measures that benefit rich countries
and corporate interests but do little for states which are struggling to provide basic health
services for their citizens. The dispute between Indonesia and the WHO over the sharing
of influenza virus samples showed how such conflicts have the potential to undermine
global public health efforts in concrete ways.57
There are also widely recognised issues surrounding the capacity of states to fulfil their
obligations under the IHR 2005. Far more is required of national health authorities than
was the case under the IHR 1969. The necessity for many member states – particularly
those in the developing world – to make significant investments in disease surveillance
infrastructure was well-known during the negotiation of the IHR revisions and is
recognised in the regulations: Annex A of the IHR includes details of ‘core capacity
requirements for surveillance and response’. The WHO has been given the task of
55 Tayob R. WHO Board debates “global health security”, climate, IPRs. TWN Info Services on Intellectual
Property Issues (Jan 08/01).
http://www.twnside.org.sg/title2/intellectual_property/info.service/2008/twn.ipr.info.080101.htm (accessed
Mar 10, 2008).
56 ibid
57 David Fidler, ‘Influenza Virus Samples, International Law, and Global Health Diplomacy’, Emerging
Infectious Diseases vol.14(1) (Jan. 2008) pp.88-94.
22
assisting states with the development of the necessary domestic mechanisms without being
given anything approaching the necessary resources to do the job. At worst this could lead
to a situation where states are forced to divert resources from primary healthcare in order
to meet their IHR obligations.
Question-marks also remain over the consequences of non-compliance with the provisions
of the IHR. The WHO still lacks an effective enforcement mechanism, although as noted
above the WTO may offer states a more robust dispute resolution system in certain
circumstances. There have been some suggestions to deal with this issue. The most
concrete of these – which emerged from the Secretary-General’s High Level Panel on
Threats, Challenges and Change – was the proposal that the UN Security Council should
be kept informed of “any suspicious or overwhelming outbreak of infectious disease” and
that “if existing International Health Regulations do not provide adequate access for WHO
investigations and response coordination, the Security Council should be prepared to
mandate greater compliance.”58 Again, any such action could raise difficult questions
about whose interests are being served, and whether ‘global health security’ in practice
means ensuring the security of some at the expense of others.
It is worth making two points in this regard, however. Firstly, the new reporting
arrangements reduce the reliance of the regime on the willingness of member states to
comply and have the potential to lead to quicker notifications of disease events bringing, it
is hoped, more timely responses. There is also good reason to hope that most states will
abide by the IHR most of the time. Whilst it would be naïve to expect universal
compliance the IHR 2005 has certain things going in its favour. For one, the regulations
were created in response to a widespread perception of a need (heightened by the
experience of SARS) to improve the existing arrangements. States thus have a vested
interest in the success of the infectious disease regime, augmented by the increasingly
high profile which such threats have gained in recent years. Secondly, states generally
comply with their international commitments to a far greater extent than realists would
predict, even in the absence of sanctions for non-compliance. States frequently exhibit a
general preference for norm-compliant behaviour. The explanations for this vary. On the
58 Secretary-General’s High Level Panel on Threats, Challenges and Change, A safer world: Our shared
responsibility (New York: United Nations, 2004), p.47.
23
one hand it may be due to a concern with their international reputation - as Chayes and
Chayes have argued this is fundamental to contemporary understandings of sovereignty
which “no longer consists in the freedom of states to act independently, in their perceived
self-interest, but in membership in reasonably good standing in the regimes that make up
the substance of international life.”59 An alternative explanation is that through their very
participation in regimes states internalize the norms which the agreement embodies.
Compliance then becomes a routine act – often codified in domestic bureaucratic
procedures – rather than a conscious decision.60 Whichever explanation we favour it is
reasonable to expect a relatively good level of compliance with the IHR 2005.
Squaring the triangle? Infectious disease, sovereignty and trade
The IHR 2005 is in many ways a much ‘stronger’ regime than its predecessor. It imposes
more obligations on states and gives new rights and competencies to the WHO. But this is
not the same as saying that it has signalled a major shift away from state-centric
approaches, still less that it is a radically new form of governance. States have been
responsible for the creation of an enormous number of international regimes in a wide
variety of issue areas. The IHR 2005 is a relatively highly developed one – and, of course,
it has the extra status of being an international legal instrument - but it is far from unique.
Under the nuclear non-proliferation regime, for example, states give extensive powers to
the International Atomic Energy Agency to carry out inspections of nuclear facilities on
their territories. These powers are considerably more intrusive than the rights given to the
WHO in relation to infectious disease. Governance without government will always lead
to disputes over authority, just as happened in the case of SARS where the PRC
questioned the right of the WHO to issue advisories warning against travel to affected
regions. It seems inevitable that similar disagreements will arise in future over the
59 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International
Regulatory Agreements (Cambridge, MA: Harvard University Press, 1996).
60 The ‘norm life-cycle’ is the most well-developed model of this phenomenon. See Thomas Risse &
Kathryn Sikkink, ‘The socialization of international human rights norms into domestic practices’ in Thomas
Risse, Stephen C. Ropp & Kathryn Sikkink (eds.), The Power of Human Rights: International Norms and
Domestic Change (Cambridge: Cambridge University Press, 1999).
24
application of the IHR to particular disease events, and over the limits of the rights and
duties of both states and the WHO under the treaty.
The negotiation process showed that the concerns of states about sovereignty and security
in some cases overrode their interest in establishing an optimal disease control regime.
The ways in which the IHR relate to international trade rules, norms and procedures is
equally problematic. Neither of these tensions has been resolved, and neither is likely to
disappear in the foreseeable future. We can expect more rather than less disagreement as
the implementation process moves forward and new cases arise. Such disputes are nothing
new for the WHO. Throughout its history its work has been hampered by the political
manoeuvrings of states and by charges that it is itself a politicized body.
This should not be taken to mean that the IHR 2005 are not a significant step forward in
the global governance of infectious disease. Recent years have brought a definite shifting
of authority towards the WHO, and the infectious disease regime has been considerably
strengthened. Yet states remain the most powerful agents in the governance of infectious
disease, and are still fundamental to the broader IPE of Global Health Governance. What
we have witnessed is not a revolution, but rather an attempt to adapt the current
governance structures to better equip them to deal with the contemporary problem of
infectious disease. Whether that attempt is successful, or whether a more fundamental
embrace of Global Health Governance principles will be required, remains to be seen.