who part ii westphalian public health

WHO, part II: Westphalian public health

[This is the second of several posts (Part I here) giving some

background to the place of WHO in the international system. I am

trying to explain some things about WHO behavior and positions I think

might be useful to interpreting their actions and statements. It is

not meant as a defense of either.]

In Part I we gave a brief background to the international system to

which WHO is tied, the Westphalian system. When WHO was created it was

the only game in town. Throughout its history, WHO has struggled to

overcome the incompatibility between the legacy of a political and

diplomatic world where actors are nation states and the real public

health world where these actors are irrelevant.

The problem of the irrelevance of political borders (and state

sovereignty) to a microbe was understood even before the germ theory.

Quarantine goes back at least to the fourteenth century, and as time

went on the practice and others like requiring a "bill of health" from

the port of origin became an increasing source of interference to free

trade and trravel between nation states. In principle one country

couldn't intervene in the affairs of another to stop an epidemic, but

it could prevent its ships from its shores or incarcerate its crews

aand impound once landed.

As trade increased so did the costs in spoiled cargos and lost cartage

times. By the middle of the nineteenth century the community of large

trading nations was exploring ways to reduce the frictional loss

caused by sovereignty, of each nation acting on its own.

Westphalianism allowed supranational controls as long as all parties

agreed. Thus began a series of international sanitary conventions from

1851 onward. They were voluntary but binding agreements negotiated by

sovereign states on how to minimize interference with international

trade and travel while maximizing protection from specified infectious

diseases. In other words, they were rules that managed state

interactions while leaving the core of sovereignty alone. The sanitary

conventions didn't interfere with what went on inside borders. They

covered quarantine and requirements for certain facilities at

international ports and airports, the gateways for cross-border

disease spread.

The classical example of a Westphalian structure in international

health are the International Health Regulations (IHR), adopted by WHO

in 1951 from the international sanitary conventions in force at that

time. They are discussed in David Fidler's monograph, SARS, Governance

and the Globalization of Disease. As he observes (p. 33), the

objectives of the IHR are pure Westphalian doctrine: to ensure the

maximum security against the international spread of disease with

minimal interference with world traffic. At the heart of the IHR is a

surveillance activity that requires notification of the international

community through WHO. The IHR only covered diseases of interest to

the great powers, cholera, plague and yellow fever ("Asiatic

diseases"). The original IHR/1969, in force until next June when they

will be succeeded by the revised IHR/2005, are Westphalian through and

through:

The IHR seek to achieve minimum interference with world traffic by

regulating the trade and travel restrictions WHO member states can

take against countries suffering outbreaks subject to the

Regulations. The IHR provide that the trade and travel measures

prescribed for each disease subject to the Regulations are the most

restrictive measures that WHO member states may take (IHR, 1969,

Article 23). The IHR contain the maximum measures that a WHO member

state may apply to address potential cross-border transmissions of

cholera, plague, or yellow fever . . . . The IHR have provisions

that prevent the departure of infected persons by means of

transportation and that limit actions taken against ships and

aircraft en route between ports of departure and arrival, against

persons and means of transport upon arrival, and against cargo,

goods, baggage, and mail moving in international transport . .

.(Fidler, p. 34).

This is not all. The flow of epidemiologic information has also been

regulated by Westphalian principles:

The [IHR] also reflect the state-centric framework, especially with

regard to the flow of epidemiological information to and from WHO.

Under the IHR, surveillance information that WHO can disseminate to

its member states can only come from governments (IHR, 1969,

Article 11). As WHO observed [cite omitted], '[t]he IHR wholly

depend on the affected country to make an official notification to

WHO once cases are diagnosed." WHO has no legal authority under the

IHR to disclose disease outbreak information it receives from

reliable non-governmental sources. (Fidler, p. 51).

This explains a great deal of WHO's seemingly irresponsible behavior

regarding release of case and sequence information. It did not have

the legal authority, under international law, to release information

without the consent of the member state. We at Effect Measure or Henry

Niman at Recombinomics might rail that WHO "must" release the Turkish

sequence information, but WHO could not do so without the permission

of the Turkish government. We could bemoan this restriction (as WHO

did for many years) and demand WHO violate international law. But such

an act could have serious consequences for WHO's position in the

international system. It would be like asking the police to violate

the law for a higher good. It might be justified in some

circumstances, but they would have to be extraordinary and the

undertaking would be fraught with difficulty and hazard. They also

would not have many chances to do it again if it turned out to be

unjustified.

It is clear the Westphalian IHR were inadequate to the task of

safeguarding the world from pandemic disease, not only in the bird flu

case but in many others where state actors have violated their

obligations to notify WHO because they would suffer economic harm. WHO

understood that the core principles for the Westphalian IHR were

inadequate as well and by the mid nineties was undertaking to revise

them. At the same time, changes were taking place in global public

health, like a chrysalis developing within the Westphalian cocoon. In

Part III we will take a look at them.

Correction, 6/4/06, 12:50 EDT: Inserted the word "not" to make the

second sentence in the penultimate paragraph read correctly, viz.,