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Emerging Infectious Diseases
Volume 2, Number 2, April-June 1996

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Perspectives

Globalization, International Law, and Emerging Infectious Diseases

David P. Fidler, J.D.
Indiana University School of Law, Bloomington, Indiana, USA
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Abstract:
The global nature of the threat posed by new and reemerging infectious
diseases will require international cooperation in identifying,
controlling, and preventing these diseases. Because of this need for
international cooperation, international law will certainly play a role in
the global strategy for the control of emerging diseases. Recognizing this
fact, the World Health Organization has already proposed revising the
International Health Regulations. This article examines some basic problems
that the global campaign against emerging infectious diseases might face in
applying international law to facilitate international cooperation. The
international legal component of the global control strategy for these
diseases needs careful attention because of problems inherent in
international law, especially as it applies to emerging infections issues.

The growing literature on new and reemerging infectious diseases often
emphasizes the global nature of their threat; the U.S. Centers for Disease
Control and Prevention (CDC) defines these diseases as diseases of
infectious origin whose incidence in humans has increased within the past
two decades or threatens to increase in the near future" (1). The World
Health Organization has asserted that emerging infections represent a
global threat that will require a coordinated, global response (2). The
threat is global because a disease can emerge anywhere on the planet and
spread quickly to other regions through trade and travel. The global
challenge of emerging infections has serious consequences for national and
international law; a states ability to deal with them is eroded because
microbes do not respect internationally recognized borders (3). Experts
grappling with these diseases no longer consider that the pursuit of a
strictly national public health policy is adequate. The need for global
cooperation increases the importance of international law in the public
health arena. Part of the effort to create a global response to emerging
infections should be an understanding of the problems that may arise from
relying on international law in dealing with these diseases. This article
outlines issues that will have to be confronted in using international law
to combat emerging infections.

Globalization

The assertion that emerging infections are a global problem requiring a
global strategy echoes observations made in other spheres of public policy:
the traditional distinctions between national and international political,
social, and economic activities are losing their importance (4).
Globalization is eroding traditional distinctions between domestic and
foreign affairs. Globalization has been defined as the process of
denationalization of markets, laws, and politics in the sense of
interlacing peoples and individuals for the sake of the common good (5).
Globalization is distinguished from internationalization, which is defined
as a means to enable nation-states to satisfy the national interest in
areas where they are incapable of doing so on their own (5).
Internationalization involves cooperation between sovereign states, whereas
globalization refers to a process that is undermining or eroding
sovereignty.

Globalization arises from the confluence of something old and something new
in international relations. It involves the very old process of political
and economic intercourse among sovereign states. The new element is the
intensification and expansion of such intercourse made possibleby
technological advances in travel, communications, and computers.
Encouraging such intensification and expansion is liberal economic
thinking, which posits that economic interdependence makes all states
economically better off and builds order and peace in the international
system (6).

The changes wrought by new technologies unleashed in the receptive
international milieu created by liberal trade and economic policies have
led to the belief that these developments are undermining sovereignty.
Observers of international relations frequently note that governments no
longer have control over economic forces at work within their countries.
The speed and volume of international capital flows illustrate the
denationalization of economics occurring through the process of
globalization (7). Another example is the development of the global
companyan enterprise that can no longer be considered national because of
the global reach of its operations, financing options, markets, and
strategies (7). The globalization of finance and business has ramifications
for politics and law as leaders and legal systems adapt to the global era
(8).

In public health, a similar combination of old and new factors can be seen.
States have historically cooperated on infectious disease control, first
through international sanitary treaties and later through the World Health
Organization (WHO) (9). While international cooperation is not new, current
global circumstances confronting the control of infectious disease are.
Globalization is also at work in public health. The assertion that a
country cannot tackle emerging infectious diseases by itself demonstrates
that public health policy has been denationalized.

Globalization has affected public health in three ways. First, the
shrinking of the world by technology and economic interdependence allows
diseases to spread globally at rapid speed. Two factors contributing to the
global threat from emerging infections stem directly from globalization:
the increase in international travel (2, 10) and the increasingly global
nature of food handling, processing, and sales (2, 10). HIV/AIDS,
tuberculosis, cholera, and malaria represent a few infections that have
spread to new regions through global travel and trade (10). The beneficial
economic and political consequences of economic interdependence may have
negative ramifications for disease control. In the European Union, for
example, the free movement of goods, capital, and labor makes it more
difficult for member states to protect domestic populations from diseases
acquired in other countries (11).

Second, the development of the global market has intensified economic
competition and increased pressure on governments to reduce expenditures,
including the funding of public health programs, leaving states
increasingly unprepared to deal with emerging disease problems.
Industrialized as well as developing countries confront deteriorating
public health infrastructures (12). Referring to the United States, one
author described this deterioration as the thirdworldization of the
American health care system (13).

Third, public health programs have also gone global through WHO and
health-related nongovernmental organizations. Medical advances have spread
across the planet, improving health worldwide. The worldwide eradication of
smallpox in 1977 is a famous example. The global reach of health care
advances has, however, a darker side. The globalization of diseasecontrol
has contributed to the population crisis because people are living longer.
Overpopulation creates fertile conditions for the spread of disease:
overcrowding, lack of adequate sanitation, and overstretched public health
infrastructures (2). Further, the widespread use and misuse of antibiotic
treatments has contributed to the development of drug-resistant pathogens
(1, 2). Finally, the success of control efforts in previous decades caused
interest in infectious diseases to wane in the international medical and
scientific communities and is now hampering emerging infectious disease
control efforts (14).

International Solutions to Emerging Infections

International efforts are under way to respond to the threat of emerging
infectious diseases. WHO and CDC have drafted action plans that stress the
need to strengthen global surveillance of these diseases and to allow the
international community to anticipate, recognize, control, and prevent them
(1, 14, 15). WHO has also established a new unit to control and prevent
emerging infections by mobilizing resources rapidly at the first signs of
outbreaks (16). The Pan American Health Organization has also adopted a
regional plan for controlling emerging infections in the Americas (17).
Health authorities from Central American countries have adopted an
emergency plan to control the epidemics of dengue and dengue hemorrhagic
fever that recently swept through Central and South America (18).
Physicians in the European Union recognize the need for better surveillance
of infectious diseases (11). A U.S. government interagency working group
has underlined the importance of international cooperation in dealing with
the emerging infections threat (19). The U.S. Senate Labor and Human
Resources Committee held hearings in October 1995 on Emerging Infections:
A Significant Threat to the Health of the Nation (20). At the Halifax
Summit in 1995, the major industrialized countries adopted a pilot project
called Toward a Global Health Network designed to help governments deal
with emerging infections and other health problems (19) (Table 1). Clearly,
the emerging infections threat and the need for action are on the
international diplomatic and public health agendas.

   Table 1. Some common elements of
   global emerging-disease control
                plans

 
   Strengthen international
 surveillance networks to detect,
 control, and reduce emerging
 diseases.
   Improve the international public
 health infrastructure (e.g.,
 laboratories, research facilities,
 technology, and communications
 links.
   Develop better international
 standards, guidelines, and
 recommendations.
   Improve international capabilities
 to respond to disease outbreaks with
 adequate medical and scientific
 resources and expertise.
   Strengthen international research
 efforts on emerging diseases,
 particularly with regards to
 antibiotic-resistant strains of
 diseases.
   Focus attention and resources on
 training and supporting medical and
 scientific expertise.
   Encourage national governments to
 improve their public health care
 systems, devote resources to
 eliminating or controlling causes of
 emerging diseases and coordinate
 their public health activities with
 WHO and the international community.
 
 Sources: refs. 1, 14, 15, 19.

Although international control plans would involve private organizations
like universities and nongovernmental organizations, the primary actors on
the emerging infections stage are sovereign states. The action plans are
predominantly blueprints for cooperation among states and represent a call
for the internationalization of responses to a problem caused by
globalization. Put another way, the proposed solutions to the emerging
infections threat rely on the sovereign state, while the threat feeds off
the impotence of the state in addressing global disease problems. When it
comes to public health activities, globalization erodes sovereignty, but
the proposed solution makes sovereignty and its exercise critical to
dealing with the threat of emerging infections.

The consequences of the unavoidable emphasis on international cooperation
in the proposed action plans for emerging infections are troubling. To
achieve the desired objectives (Table 1), states will have to agree on many
issues and translate such agreement into guidelines or rules. International
law becomes important to the effort for emerging infections control.
Political leaders, diplomats, and scholars have long recognized the
weakness of international law in regulating state behavior. At first
glance, the prospect of having to rely on a notoriously weak institution of
international relations as part of the global effort to combat emerging
infections is unsettling.

International Law and Infectious Disease Control

We might have been less unsettled if our experience with international law
in controlling infectious diseases had been more positive. The success of
WHO in globalizing disease control programs might suggest that the defects
of international law have not hobbled its effectiveness in improving health
care worldwide. However, despite having the authority to do so, WHO has
been reluctant to use international law (21, 22). The International Health
Regulations administered by WHO represent the most important set of
international legal rules relating to infectious disease control, but the
regulations only apply to plague, yellow fever, and cholera (23). The
importance of health is mentioned in international declarations (for
example, see the Universal Declaration of Human Rights, art. 25 [1]) and
treaties (for example, see the International Covenant on Economic, Social
and Cultural Rights, art. 12), leading some legal scholars to argue that
international law creates a right to health (24); but this right does
not directly address the control of infectious diseases. WHO has refrained
from adopting rules on trade in human blood and organs, which does raise
issues of infectious disease control as illustrated by the sale of
HIV-contaminated blood in international commerce (25). Issues of disease
control also appear in specialized treaty regimes outside WHO, such as
treaties controlling marine pollution from ships (26). Other areas of
international public health law, for example, rules about infant formula
and guidelines on pharmaceutical safety, do not deal with the control of
infectious diseases (25).

The effectiveness of existing international law on infectious disease
control has been questioned. A 1975 WHO publication stated that the
International Health Regulations have not functioned satisfactorily at
times of serious disease outbreaks (27). More recently, WHOs efforts with
the International Health Regulations have been called a failure, and
noncompliance with these regulations has increased in connection with
reporting disease outbreaks (25). The HIV/AIDs crisis dramatically
illustrated the weaknesses of the health regulations. Since AIDs was not
originally (or subsequently) made subject to the regulations, states had,
and continue to have, no notification requirements in connection with this
new disease. Further, as HIV/AIDs spread globally, many states adopted
exclusionary policies that, according to experts, violated provisions of
the health regulations (25). In relation to one of the biggest disease
crises of this century, parts of the International Health Regulations were
irrelevant, and other parts were openly violated.

WHOs reluctance to apply international law has been attributed to its
organizational culture, which is dominated by scientists, doctors, and
medical experts. Perhaps the current weakness of international law on
infectious disease control reflects WHOs nonlegal strategy rather than the
inherent problems in international law itself. In connection with emerging
infections, however, WHO is advocating an international legal strategy by
recommending revision of the International Health Regulations (28). This
recommendation suggests that WHO acknowledges the need for international
legal agreement in dealing with emerging infections. The global threat
posed by these infections represents in many ways a test case for
international public health law.

The Challenge to International Law

The threat of emerging infectious diseases poses two challenges to
international law: first, theemerging infections problem exacerbates basic
weaknesses in the law. Second, these infections pose specific difficulties
in the law, which are related to the nature of disease and its prevention.

Basic Weaknesses

The effectiveness of international law depends on the consent of states,
which means that sovereignty and its exercise determine the fate of
international legal rules (29). In adopting a legal strategy for its
emerging infectious disease action plan, WHO has to convince its member
states to take certain actions in response to disease emergence. The
sovereignty of states looms large in formulating a global response to
emerging infections, despite the fact that the process of globalization
undermines the sovereignty of the state to deal nationally with these
infections. In other words, the problem by-passes the state, but the
solution has to rely on the state through the medium of international law.
The central importance of the state and its sovereignty constitutes a basic
weakness in international law because international legal rules tend to
reflect the compromises necessary to achieve agreement and the
unwillingness of states to restrict their freedom of action through
international law. Part of the reason that the existing International
Health Regulations cover only a few diseases might be the unwillingness of
WHO member states to commit to more serious infectious disease control
measures. The vagueness and lack of specificity in the so-called right to
health also illustrate this problem. What is scientifically and medically
necessary to combat emerging diseases may not be what states are willing to
agree to undertake.

A second basic weakness follows from the sovereignty problemthe lack of
effective enforcement of international law. States often agree to an
international legal obligation without any serious intent of fulfilling it.
The alleged failure of the International Health Regulations may be due to
the failure of WHO member states to fulfill the duties they accepted.
Neither the regulations nor WHO has any power to enforce compliance (25).
An international legal regime on emerging diseases would also face this
enforcement problem.

Specific Difficulties

The very nature of the emerging disease threat poses special difficulties
for international law. The global scope of the problem necessitates
agreement by most states to control emerging diseases. If any major country
or group of countries does not participate, a gap in the global
surveillance and control network threatens the efficacy of the entire
effort. The negotiation of agreements involving many states is usually
difficult, because each state knows that its nonparticipation threatens the
success of the entire venture. This problem has occurred in international
environmental law, where global regimes have been needed to deal adequately
with environmental threats, such as ozone depletion.

A second specific difficulty arises from the extent of medical and
scientific resources needed to establish an effective global surveillance
and control network for emerging diseases. Fundamental aspects of the
proposed action plans involve improving surveillance networks, public
health infrastructures, scientific research, and medical and scientific
training (Table 1). Some states, particularly in the developing world, do
not have the medical, scientific, and financial resources to undertake such
measures. Unless more affluent countries provide theresources, developing
states may use the inequity of wealth in the international system as an
argument to complicate negotiating a global agreement. The so-called
North-South problem has made the negotiation of international
environmental agreements more difficult, as developing countries have
bargained for more lenient treatment or a transfer of resources from
affluent countries to help them improve environmental protection. A similar
dynamic may appear in any negotiations for a global emerging disease
effort. The U.S. interagency working group on emerging diseases has
observed that major U.S. contributions to developing countries for emerging
disease control purposes is not a likely prospect during this period of
deficit reduction and downsizing (19), which suggests that resource
availability will probably complicate international efforts in this area.

The problems associated with using international law in a global strategy
to combat emerging diseases raise the question whether international law
can provide an adequate foundation for the control of these diseases. The
uncomfortable position of having no choice but to rely on international law
when its weaknesses are substantial highlights the importance of thinking
through the international legal aspects of a global emerging disease plan
carefully.

WHOs Proposed Legal Strategy

WHO wants to revise the International Health Regulations as part of its
global emerging disease strategy (28). WHOs proposal deserves some
critical attention. It is not clear that the organization has adequate
authority to incorporate comprehensive emerging disease control measures
within the international regulations. Under Article 21 of the WHO
Constitution, the World Health Assembly can adopt binding regulations in
sanitary and quarantine requirements and other procedures to prevent the
international spread of disease (22). The World Health Assembly adopted the
International Health Regulations under Article 21. While Article 21 and the
regulations are relevant to emerging disease control efforts, it is
doubtful whether the regulations can serve as a foundation for a
comprehensive emerging disease control plan. The disease-outbreak
notification requirements in the regulations could be expanded to include
more diseases, but nothing in Article 21 gives the World Health Assembly
the authority to require WHO member states to strengthen public health
infrastructures, which is considered critical in the emerging disease
actions plans proposed to date (Table 1). It has been argued that
attempting to address such infrastructure problems is a solution which
cannot be obtained by an international instrument but only by the
improvement of the health conditions of the peoples of WHOs member states
(30). But, as the history of administering the International Health
Regulations has shown, notification requirements have not worked
satisfactorily and are weakened by the absence of adequate public health
resources. Further, Article 22 of the WHO Constitution makes regulations
promulgated under Article 21 automatically binding on WHO member states,
except for member states that reject such regulations or make reservations
thereto (31). Article 22 relates to the sovereignty problem and may deter
WHO member states from agreeing to serious revisions of the regulations.
Analysis of the regulations may question the wisdom of using the
regulations as the legal basis for dealing with emerging diseases.

The World Health Assembly has the power to adopt conventions or agreements
within WHOs competence (21). The Assembly could use this authority to
address aspects of the global emerging disease control strategy that cannot
be handled with a revision of the regulations.However, parceling up
emerging disease control measures between the International Health
Regulations and separate agreements would be legally complicated. Further,
WHO has not used this power to adopt conventions or agreements, which
explains its unwillingness to explore all legal options open to it.

Possible Alternative Legal Strategies

Alternative legal strategies to revising the International Health
Regulations range from reliance on the development of customary
international law to the adoption of multilateral treaties specifically on
emerging-disease control (Table 2). An issue related to these alternative
approaches is the substantive nature of the obligations contained in legal
documents. We have to ask not only how states might agree on control rules
but also what these states might agree to do. The proposed revision of the
regulations apparently would only apply the notification duties (currently
found in the regulations) to more diseases. As indicated earlier, WHO
cannot address in its revision of the regulations any of the improvements
in public health infrastructures, surveillance networks, scientific
research, or medical and scientific training at the heart of proposed
emerging disease action plans. Further, it is not clear whether WHO intends
to supplement expanded notification duties with any mechanism to monitor or
enforce such duties.
   Table 2. Alternative international legal strategies to
       revising the International Health Regulations

 Alternative legal                      Possible
 strategies        Possible advantages  disadvantages

 1. WHA            Integrates emerging  a. Emerging disease
 incorporates      disease control      control would
 emerging          measures into the     not be primary
  disease control  overall WHO          focus
 as part of the    approach to          b. World Health
  proposed World   international        Charter is likely
 Health Charter    health               to
  scheduled for    issues                be more
 initial                                aspirational than
 negotiations                            obligatory
  in 1997

 2. WHA adopts an  a. Avoids IHR model  a. WHA has no
 emerging          b. Has potential to  experience with
  disease-specific set out               using Article 19
 convention under   comprehensive       b. Large
  Article 19 of    global approach      multinational
 the WHO            to emerging         treaties tend
 Constitution      diseases              to contain general
                                        obligations
                                         rather than
                                        specific duties

 3. States         a. Takes emerging    a. WHO has to play
 negotiate a       disease control      central role in
 framework          out of WHO,          any emerging
  multilateral     eleminating          disease plan
 treaty on general  problem of WHO's    b.
                   reluctance to        Frameowrk-protocol
  emerging disease  use international   approach
 obligations,      law                   might not be
  accompanied by   b. Allows for new    appropriate model
 disease-specific  protocols to be       for emerging
 or                 adopted for new     disease control
  region-specific  diseases              because the
 protocols         c.                   emerging disease
 containing        Framework-protocol    problem differs
  detailed and     approach             from ozone
 specific           has been used with   depletion
 commitments       some success
  on emerging       in international
 disease control   environmental
                    law on ozone
                   depletion

 4. Encourage      a. Builds on strong  a. Emerging
 regional          regional systems     diseases require a
 arrangements       of cooperation and   global approach
  and integrate    coordination         not just a
 them into global  b. Offers "legal      regional approach
  regime over time laboraties to try    b. Amounts to
                    various approaches  emerging disease
                   to emerging           control for rich
                    disease control     regions, leaving
                   c. Avoids             many developing
                   diplomatic           countries
                   headaches             outside legal
                    involved in trying  regime
                   to negotiate         c. Risks
                    truly global legal  inconsistencies in
                   regimes              how
                                         emerging diseases
                                        are handled
                                         by different
                                        regions

 5. Encourage a    a. Gives states      a. Does not address
 bilateral         flexibility in       global nature of
 approach in        constructing legal   emerging disease
  which individual obligations          problem
 contries          b. Permits           b. Sanctions
  negotiate        possibility for      element is
 detailed and      sanctions            unrealistic
 specific           for failure to       and might be
  commitments on   live up to emerging  unfair to
 emerging                                developing
  diseases and      disease             countries lacking
 perhaps condition obligations           the resources
                                        necessary to
  trade benefits                         implement adquate
 and aid on                             emerging
 emerging                                disease control
  disease                               measures
 performance

 6. Incorporate    a. Links emerging    a. International
 emerging disease  disease control      "right to health"
  control as part   with larger,        has
 of international  powerful concepts     no definitive
  "right to         of human welfare    meaning or scope
 health," making   b. Builds on          and thus is a bad
 emerging          existing             foundation for
  diseases a human international         emerging disease
 rights issue       law on the "right   control
                   to health"           b. Human rights are
                                        inherently
                                         divisive in the
                                        international
                                         system; linkage
                                        with such a
                                         controversial area
                                        would hurt
                                         emerging disease
                                        control prospects

 7. Rely on        Customary            a. It will be
 customary         international norms  nearly impossible
 international     on                   to
  law to develop   emerging disease      develop general
 emerging          control would be     and uniform state
  disease-control  binding on all        practice
 norms             states except        recognized by
                   persistent           states as
                   objectors             legally binding in
                                        the emerging
                                         disease-control
                                        area
                                        b. Any customary
                                        norms that might
                                         form will probably
                                        be vague and
                                         hard to identify
                                        definitively
                                        c. Customary norms
                                        can take a very
                                         long time to
                                        develop

 WHA = World Health Assembly; WHO = World Health
 Organization; IHR = International Health Regulations.

International environmental law had to overcome some of the same obstacles
encountered by WHOs international legal effort for emerging disease
control. States realized that they could not handle global environmental
problems without international cooperation and rules (32). Further, states
knew that addressing environmental concerns would require changes for
governments and companies within states and that developing states might
have financial and technological difficulties implementing international
agreements (32). In developing international environmental law, states,
international organizations, and nongovernmental organizations did not rely
on old approaches but instead crafted new international legal rules to deal
with the global nature of the threats posed, the resource issue, and
compliance and enforcement problems (33). Whether international
environmental law has been successful is controversial; but it is important
that states have not been willing to admit that improving environmental
conditions within states is a solution that cannot be obtained by
international agreements. Models and precedents from international
environmental law are not in all respects helpful to the challenge of
emerging-disease control; but, at the very least, those grappling with an
international strategy for the emerging-disease threat could analyze
international environmental law and other innovative legal responses to
globalization to look for ways of making WHOs international legal strategy
on emerging diseases as effective as possible.

Those currently designing global emerging-disease control strategies will
eventually have to translate what is scientifically and medically needed to
combat these diseases into international agreement and cooperation through
international law. The movement from science and medicine into the realm of
international law will not be easy. Relying on the International Health
Regulations as the centerpiece of international law on emerging-disease
control may not be the most effective international legal strategy.
Whatever international legal approach is eventually taken will have to
confront somehow a fundamental paradox: globalization jeopardizes disease
control nationally by eroding sovereignty, while the need for international
solutions allows sovereignty to frustrate disease control internationally.
The combination of the process ofglobalization and the unavoidable need to
rely on international law produces a most unattractive medium in which to
wage potentially one of the most important medical and scientific endeavors
in history.

Mr. Fidler is associate professor of law at Indiana University School of
Law, Bloomington, where he teaches public and private international law. He
has a master of philosophy (M.Phil.) degree in international relations from
Oxford University, a J.D. from Harvard Law School, and a bachelor of civil
law degree from Oxford University. Before joining the faculty at Indiana
University School of Law, Mr. Fidler practiced law with Sullivan & Cromwell
in London, England, and with Stinson, Mag & Fizzell, P.C., in Kansas City,
Missouri.

Address for Correspondence:
David P. Fidler, J.D., Indiana University School of Law, Third Street and
Indiana Avenue, Bloomington, IN 47405-1001 USA; fax: 812-855-0555; e-mail:
davidfidler@law.indiana.edu

Acknowledgments

I thank Jack Bobo, research assistant, for his valuable work during the
preparation of this article, and Lane Porter and Allyn Lise Taylor for
their helpful comments on earlier drafts of this article. I also thank my
colleagues on the faculty of Indiana University School of Law for their
helpful comments on an earlier draft presented at a faculty colloquium.

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