Economics and International Law of Flu Pandemics--

David Brooks praises what he calls the "decentralized approach" to the swine flu crisis, arguing that it is better for nations to respond to the flu on their own, albeit with the loose coordination made possible by informal scientific and medical networks, than for some monster world agency to impose a centralized solution to the problem. The World Health Organization is far from being such an agency—fortunately, in Brooks' mind. Brooks writes as though we could have a centralized agency if we wanted but that we have wisely opted for a more decentralized approach. In fact, it is doubtful that we could have such an agency but if we could it would be better if we did. Our current system is very much a second best, and it's wrong to treat this failure of international cooperation as though it resulted from wise, conservative self-restraint on the part of nation states rather than the limits of the state system.

One might start by asking why international law might be needed in the first place. No state benefits from a flu outbreak and so it might seem that states' interests converge and they would take adequate prevention, detection, and containment measures without any pressure from international law. However, this view, which seems to Brooks', turns out not to be true. A state does not fully internalize the costs of a flu outbreak. If the outbreak is severe enough, individuals may carry the infection across borders and cause outbreaks in other countries. This suggests that states will take inadequate precautions from the standpoint of global welfare.

In particular, states can do three things to minimize the risks of a pandemic. First, they can invest in prevention measures, including building health clinics in remote rural areas (where outbreaks often occur because of the degree of contact between humans and animals), inoculating people when suitable vaccines are available, and, in other ways, promoting health, nutrition, and sanitation. Second, states can invest in detection and control measures: training doctors and nurses to recognize the symptoms of the flu, to test for it, and to send information to national health authorities, who can then implement an appropriate response, including vaccination and quarantine. Third, states can disclose the outbreak to the rest of the world, which enables other countries to protect their citizens—such as by cutting transportation links and (where relevant, not here) imports of contaminated food.

Clearly, states—and we are mainly talking about developing states here, because in those states human-animal mingling is most prevalent—have inadequate incentives. As much as they may wish to avoid epidemics, they have other uses for funds as well, and will be unlikely to take account of the benefits to other countries from strong prevention, detection, and control measures at home. But the main problem is disclosure to the rest of the world. Developing nations suffer greatly if other countries restrict migration and exports. They are thus tempted to delay disclosing epidemics in the hope that they can be controlled locally. This is what happened with China and SARS in 2003, and it appears that Mexico may have repeated this pattern though it is not yet clear. Given the speed with which a person, and hence the disease, can travel around the world on a jet airplane, short delays in disclosure of an outbreak can have devastating consequences. Indeed, other countries may overreact to information about disease outbreaks and cut links prematurely.

What can be done? Let us start with the optimal response. In an ideal world, states would enter a treaty in which they agreed to take the globally optimal prevention, detection, control, and disclosure measures. Because the developing world would incur most of the costs (because they are the main sources of influenza), and the developed world most of the benefits, such a treaty would probably involve a substantial side payment from the rich to the poor. In particular, countries like China and Mexico would commit to investing greater resources in prevention, detection, and control; and they would also commit to alert other countries the moment that an outbreak is detected. Other provisions would require the pooling of medical expertise, the stockpiling of vaccines and a system of distribution, and perhaps a central agency that would coordinate the global response. Indeed, an optimal (but unimaginable) regime would authorize the agency to order countries to shut their borders and take other measures as necessary, with severe penalties to be imposed on states that fail to obey those orders.

The current international legal regime emphatically falls short of this ideal. WHO has virtually no power to compel a state to do anything. It can collect information—if states cooperate—and it can make recommendations that governments are free to ignore. Nonetheless, WHO seems to be highly respected and the system works well within its limits. How can this be so when there is no international law that compels states to give information to WHO or follow its advice?

The answer is that WHO can offer states something they want—expertise and assistance. A developing nation faces a tradeoff when it decides whether to disclose an outbreak. It gains assistance from WHO, which helps it protect its own citizens, but it risks being isolated by other states. The tradeoff need not cause the state to take the optimal action, but at least the state has stronger incentives to disclose the outbreak than it would if the carrot of assistance were not offered. In effect, the developed world—which supplies most of WHO's funds—is buying disclosure. To the extent that the incentives to disclose at an early stage of the outbreak are still too weak, the developed world should seriously consider compensating the state that discloses responsibly for some or all of the costs of international isolation until the outbreak is controlled.

The problem is that the prospect of this assistance might cause developing nations to underinvest in prevention, detection, and control in the first place. WHO already does provide pre-outbreak assistance to states—its overall mission, even aside from the component of it that addresses risks of pandemic, is to improve health care in poor countries. This is one of the many ways that poor countries can benefit from being poor (having bad intellectual property laws is another) and it makes sense for them to underinvest in health, or to threaten to do so, in order to obtain greater assistance from rich states. Still, the high cost of a local outbreak limits these perverse incentives to some degree.

WHO serves another important function. It has established best practice guidelines for dealing with a disease outbreak and it issues alerts that notify governments of the severity of the outbreak and hence what steps to take. The alerts range from phase 1 ("no viruses circulating among animals have been reported to cause infections in humans") to phase 6 ("the pandemic phase, is characterized by community level outbreaks in at least one other country in a different WHO region in addition to the criteria defined in Phase 5"). We are currently at phase 5 ("human-to-human spread of the virus into at least two countries in one WHO region. While most countries will not be affected at this stage, the declaration of Phase 5 is a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short"). Governments greatly benefit from this information and those governments with low levels of public health expertise can follow the WHO's best practices guidelines, which benefit them as well as people in other countries.

WHO's weak information disclosure and advisory functions have an important effect on the behavior of states because poor states enjoy private benefits from this information, and rich states are willing to finance and operate WHO because those rich states gain from the actions of the poor states. It also helps that a scientific consensus exists in broad lines about the appropriate response to a disease outbreak. This is a happy story of the success of international organizations but it also illustrates the limits of international law. An optimal system—the system that would exist if states could fully resolve collective action problems and overcome their conflicting interests—would be far more intrusive. It would have stringent laws and feature an agency that resembles domestic authorities that have draconian powers to quarantine and otherwise interfere with people's freedoms when a disease outbreak strikes. And in international regimes where science does not provide an objective grounding for states' interests, even the minimalist type of international cooperation illustrated by WHO won't be possible.

More from Ken Anderson and David Fidler on swine flu and international law.

Benjamin Davis (mail):

WHO is an international government organization creature of state parties (i.e. nations). I do believe it is a strawman argument to argue it is not "good enough." It is important to see first what are the state obligations and second which states are in compliance with it.

WHO serves as a focus transnationally for health related matters and provides a mechanism for information sharing. There are regional substructures in WHO as well as non-WHO regional and national healt authorities.

A significant problem with not having the WHO is that we move back to the world where the dynamic of health is on regional or national levels with even further inability for information to travel about events that occur and transnational coordination and cooperation at a rapid pace.

All of these structures are works in progress by definition and depend on just how far states wish to integrate.

Problems with health issues are not peculiar to developing countries and lack of notice is similarly not peculiar to developing countries.

To give a few examples,

1) when AIDS first came out the denial by the US government about doing anything was a source of great frustration for gays. Anyone remember Act Up? And of course in France there was the terrible hemophiliac contamination with AIDS through tainted blood brought on by the Ministry of Health blocking the introduction of American testing methods and heated blood due to mundane financial/commercial competition.

2) Mad Cow Disease in England. I can not donate blood because I lived in France and visited England and ate English meat.

3) Different views of developed states on the precautionary principles with regard to keeping GMO's off the market.

1, 2, and 3 are cases where public health and financial interests in developed countries conflict - in countries with resources - and that influenced the disemination of information.

We could look at the asymmetric transmission of information after Tchernobyl also among European states (France assured all that the cloud had not passed over France while across the border in Germany they were cutting up the grass and destroying hay and green vegetables in which radioactive items were to concentrate).

The cases referring to developing countries cited of Mexico and China must be seen differently. China on SARS was slow to start but with the window of Hong Kong and the actions there accelerated. Mexico's cases have been brought out quickly thanks to a thing that does not appear to be taken into account - the internet.

Because there is an internet that reduces the ability of states to have a monopoly on/control information and the acts of individuals accelerates the disemination of information. As these things accelerate, the states look slow.

4.29.2009 11:06pm
Kenneth Anderson (mail) (www):
My impression, partly from the work I did on the UN reform stuff for the Gingrich-Mitchell report (doing the "uncool" subject areas that few were interested in, international development, epidemic disease, natural disaster, rather than security) and partly as a development finance person, is that WHO and such activities tend far more to serve as inducement to poor countries to invest something in these activities.

The reason, so far as I've ever seen, is that the barriers to entry on these public health activities - even when they are not high tech, just basic Victorian-era stuff, but still require coordination, planning, etc. - are dauntingly high. WHO brings resources in a material sense, but it also brings coordination mechanisms that in these places are invaluable and largely missing in government. Vaccination programs for childhood diseases work pretty well on a command-control model - they don't require markets embedded in certain kinds of cultural, social, and legal systems to work pretty well, which is a reason why massive, global-level immunization programs have been remarkably successful over the past fifty years.

Perhaps the most appalling death I have ever seen in several decades of human rights work, monitoring various armed conflicts, and development work was the death of a very young girl, maybe six or seven years old, in a remote part of El Salvador from measles. The outbreak finally brought the guerrillas and the government forces to agree to a temporary ceasefire to allow the ICRC and health groups to carry out vaccinations. Too late for that child, sometime in the early 1980s.
4.29.2009 11:20pm
einhverfr (mail) (www):
SARS was an outbreak worth watching, especially on the post mortem side (port mortem of the outbreak, not the patients!).

In countries which had good centralized monitoring and tracking (like the US), the outbreak was relatively quickly contained. In countries which didn't (like Canada), death rates went up and containment was more difficult.

I think that we SHOULD opt for a centralized international agency to coordinate disease surveillance efforts, like the CDC does in this country. We don't need commitments on containment measures because neither access to technology nor access to health care seems to be a prerequisite here. We need supplies of test kits to be sent to third world hospitals, scientific coordination, tracking of cases, etc.

Even in this country, the CDC manages information and the states manage containment plans for the most part.
4.30.2009 12:09am
Mark Buehner (mail):
Surprise! Another 'pandemic' totally overblown.

As the World Health Organization raised its infectious disease alert level Wednesday and health officials confirmed the first death linked to swine flu inside U.S. borders, scientists studying the virus are coming to the consensus that this hybrid strain of influenza -- at least in its current form -- isn't shaping up to be as fatal as the strains that caused some previous pandemics.

In fact, the current outbreak of the H1N1 virus, which emerged in San Diego and southern Mexico late last month, may not even do as much damage as the run-of-the-mill flu outbreaks that occur each winter without much fanfare.


I'll see you guys at the next hysterical germ freak out scheduled for 2012. We're starting a pool for which country it will come out of, my money's on Latvia. Just like the sound of it.
4.30.2009 10:35am
Benjamin Davis (mail):
I add that access to exchange of information through the internet coupled with WHO coordination provide accelerators to state action it would seem. It is a new world for state in which not only elites are able to have intra and interstate pressure developed for state action and/or state compliance with international law obligations. It becomes a part of the citizen's role to make this happen.
4.30.2009 10:51am
Bob from Ohio (mail):

An optimal system—the system that would exist if states could fully resolve collective action problems and overcome their conflicting interests—would be far more intrusive. It would have stringent laws and feature an agency that resembles domestic authorities that have draconian powers to quarantine and otherwise interfere with people's freedoms when a disease outbreak strikes

I find nothing "optimal" about an international health regime with these powers.

"Frightening" or "horrific" are words I would use.

Its one thing to trust American government officials with "draconian" powers. Quite another to trust an international agency.
4.30.2009 11:34am
RichW (mail):
Bob from Ohio:

Its one thing to trust American government officials with "draconian" powers. Quite another to trust an international agency.

I don't even trust American government officals with normal powers much less draconian! I think though we will find out over the next couple of years what that looks like.

4.30.2009 12:42pm
Benjamin Davis (mail):
I look at the conduct of the government, no trust whatever the party in power. They earn it, if at all, through their conduct.
4.30.2009 1:26pm

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