of Avian Influenza A (H5N1) and International Law
By David P. Fidler
The outbreak of avian influenza A (H5N1) in Asia
has become a global crisis for animal and human
health. On January 27, 2004, the World Health
Organization (WHO), Food and Agricultural Organization
(FAO), and the World Organization for Animal Health
(OIE) appealed for global collaboration and funding
to control the outbreak.
 This crisis comes less than a year after
the outbreak of Severe Acute Respiratory Syndrome
(SARS) led to an unprecedented global effort to
contain a new microbial threat.  ,
 The avian influenza outbreak is further
evidence of the serious threat infectious diseases
pose in the global era. This Insight provides
basic information on the avian influenza outbreak
and briefly discusses its implications for international
Avian influenza, commonly called "bird flu,"
is an infectious disease of birds caused by
strains of the influenza virus. Avian influenza
was first identified a century ago. Many types
of avian influenza viruses affect domesticated
and wild bird populations all over the world.
Avian influenza viruses often cause only mild
illness in birds, but highly pathogenic virus
strains have appeared, spreading rapidly through
flocks and causing high mortality in bird populations.
The first cases of avian influenza viruses
in humans occurred in 1997, when the H5N1 virus
triggered an outbreak in Hong Kong, infecting
18 people, six of whom died. The human cases
occurred at the same time the H5N1 virus ripped
through Hong Kong's poultry population. The
human outbreak alarmed public health officials
because a highly pathogenic strain of avian
influenza "jumped species" and caused mortality
in humans. Fear about the H5N1 virus resurfaced
in February 2003, when a H5N1 outbreak in Hong
Kong caused two cases with one death. The H5N1
virus was thought to be a possible culprit of
the large outbreak of respiratory disease in
Guangdong Province, China, which later turned
out to be SARS.
In neither the 1997 nor 2003 outbreaks did
the H5N1 virus establish human-to-human transmission.
In all cases, humans became infected through
contact with infected birds, typically poultry,
or their excreta. The greater concern was the
potential for the H5N1 virus to undergo "antigenic
shift"-swapping genetic material with human
influenza viruses to produce a highly pathogenic
microbe transmissible from person to person.
The H5N1 virus' potential for antigenic shift
is significant because it mutates rapidly and
acquires genes from viruses infecting other
animal species. Experts believe that the massive
and rapid culling of poultry populations in
Hong Kong in 1997 avoided a pandemic of the
H5N1 virus in bird and human populations.
Global Outbreak of Avian Influenza (H5N1),
December 2003-January 2004
The present outbreak of the H5N1 virus began
in mid-December 2003, when South Korea identified
the virus in poultry populations.  From mid-December 2003 until
January 27, 2004, the H5N1 virus has been identified
in nine countries in Asia: South Korea, Japan,
Vietnam, Thailand, Cambodia, Indonesia, Pakistan,
Laos, and China.  As of January 27, 2004, humans
infected with the H5N1 virus have been identified
in only Thailand and Vietnam; but suspected
human cases are being investigated in Cambodia.  WHO describes the scale of this H5N1 outbreak
as "historically unprecedented,"
 causing "a disaster for agricultural
production" in the Asia region and a "global
threat to human health." 
Destruction of flocks and import bans applied
against poultry exports of affected countries
have decimated this industry in the Asian region.
The unprecedented scale of the spread of the
H5N1 virus creates two major public health threats:
(1) the widespread presence of the virus in
poultry and other birds increases the chances
of human infection; and (2) the increased likelihood
of human infection raises the prospect that
humans will serve as "mixing vessels" for the
emergence of a new influenza virus that transmits
from human to human, an event that could trigger
a global influenza pandemic. 
The global threat of avian influenza A (H5N1)
motivated WHO, OIE, and FAO to appeal to countries
to join in a global collaboration effort to
fight the outbreak similar to the global campaign
that successfully contained SARS in 2003.
Avian Influenza A (H5N1) and International
International Health Regulations
As was the case when SARS emerged, the global
effort against the H5N1 virus will take place
without a specific international legal framework
on infectious disease control. The International
Health Regulations (IHR)  only apply to three infectious
diseases-cholera, plague, and yellow fever.
 No other international agreement
on infectious diseases is currently binding
on WHO member states. The IHR are as irrelevant
to the current avian influenza outbreak as they
were to the SARS outbreak.
WHO has been revising the IHR since 1995 to
make them more relevant to the global infectious
disease threat.  In January 2004, WHO released an interim text of the proposed
IHR revisions for consultations with its member
states.  The revision process is expected
to be completed by May 2005;
 thus, the new IHR will not be legally
applicable to the current avian influenza crisis.
The outbreak underscores, as did SARS, the urgent
need for WHO member states to revise the IHR
to provide an international legal framework
for global efforts against infectious disease
Regime coordination between animal and human
Unlike SARS, avian influenza A (H5N1) poses
global threats to both animal and human health,
requiring close collaboration among, and coordinated
action by, WHO, OIE, and FAO. The main public
health intervention is destruction of poultry
flocks in affected countries,  an intervention that requires the mobilization
of animal health and agricultural assets. If
public health and agricultural interests are
not aligned, gaps will undermine the global
containment effort. Indonesia's decision (to
date) not to cull its poultry flocks despite
the presence of the H5N1 virus in the country  serves as a worrying example of diverging
public health and agricultural interests. A
key area of collaboration will be efforts to
convince countries in Asia to change radically
animal husbandry to reduce microbial threats,
such as SARS and avian influenza, created by
existing animal production and food-processing
Trade restrictions and the SPS Agreement
Many countries have applied trade restrictions
on imports of birds and their products (e.g.,
meat, eggs, and semen) from Asian countries
affected by the H5N1 virus. China has, for example,
banned poultry imports from South Korea, Japan,
Vietnam, and Thailand. Such trade restrictions
implicate the Agreement on the Application of
Sanitary and Phytosanitary Measures (SPS Agreement)
of the World Trade Organization (WTO).
 In accordance with the SPS Agreement,
WTO member states are notifying the SPS Committee
of trade restrictions applied to poultry exports
from affected countries.  Countries, at present, justify these trade restrictions on
animal health grounds, and the highly pathogenic
nature of the H5N1 virus in bird populations
means that such restrictions are unlikely to
be challenged under SPS Agreement requirements
for a scientific justification for trade-restricting
health measures. The role of trade in the unprecedented
geographical spread of the H5N1 virus, however,
is not presently understood. 
Intellectual property rights and technologies
to fight the H5N1 virus
As part of its response to the avian influenza
A (H5N1) outbreak, WHO has accelerated development
of technologies useful in containing the virus.
Although diagnostic technologies in influenza
laboratories are good, diagnostics for clinical
purposes need improvements.  Anti-viral drugs that show effectiveness
against influenza A virus strains are available
but are expensive and in limited supply.
 In addition, the H5N1 virus is exhibiting
resistance to some cheaper anti-viral drugs
used to treat influenza.  Finally, WHO is stressing the need to develop
a vaccine for the H5N1 virus and has accelerated
efforts to achieve this objective.
The development and use of new anti-H5N1 technologies
will require participants in these endeavors
to forgo intellectual property rights in the
interest of creating needed "global public goods,"
as was done in the global campaign against SARS.
Attempts to exercise such rights will trigger
opposition and again raise the "public health
v. intellectual property rights" controversy
that led to the Doha Declaration on the TRIPS
Agreement and Public Health, which provided
that "the TRIPS Agreement does not and should
not prevent members from taking measures to
protect public health." 
Human rights concerns
To date, the avian influenza A (H5N1) outbreak
has not raised concerns about civil and political
rights that arose in the response to SARS (e.g.,
isolation and quarantine) because the H5N1 virus
has not established human-to-human transmission.
Should the feared antigenic shift in the H5N1
virus occur, the human rights concerns triggered
by SARS are likely to be greatly magnified in
response to public health efforts to contain
a global influenza pandemic.
The H5N1 virus outbreak has raised another
human rights concern-compensation for government
destruction of private property. The right to
property is recognized, for example, in the
Universal Declaration of Human Rights.
 This right is not absolute, and governments
may infringe upon it for various reasons, including
the protection of the public's health. Government
compensation for private property destroyed
in the public interest is one way to respect
the right to property. WHO, OIE, and FAO have
stressed the importance of compensation in the
global campaign to stop the H5N1 outbreak.
Principles of state responsibility and accusations
about cover-ups in Thailand and Indonesia
Critics have accused the Thai and Indonesia
governments of attempting to hide H5N1 outbreaks
in their territories.  These accusations are similar to those leveled
at China's attempt to conceal its SARS outbreak
last year. As in the SARS outbreak, the failure
of governments to deal transparently with other
nations concerning epidemic-prone diseases can
contribute to further spread of dangerous pathogens
within and between countries. It is not clear
that concealment of diseases would violate existing
principles of state responsibility. Consequently,
in light of the controversy surrounding the
responses of the Thai and Indonesian governments
to the current outbreaks, new global norms in
this area are needed, as proposed in the revised
IHR, rather than leaving it to individual states
to determine what measures to take.
About the Author:
David P. Fidler is Professor of Law and Ira
C. Batman Faculty Fellow at Indiana University
School of Law, Bloomington and currently a Visiting
Senior Research Scholar at the Centre for International
Studies, University of Oxford.
 On the international legal and governance implications
of the SARS outbreak, see David P. Fidler,
"SARS: Political Pathology of the First Post-Westphalian
Pathogen," 31 Journal of Law, Medicine
& Ethics (Dec. 2003) and David P.
Fidler, SARS, Governance, and the Globalization
of Disease (Basingstoke: Palgrave Macmillan,
 J. Hookway and T. Mapes, "Bird Flu Troubles
Health Agency," Wall Street Journal,
Jan. 27, 2004, at A12.
 Id. (noting FAO's desire "to spur Asian governments
to make some fundamental changes in livestock-raising
 Agreement on the Application of Sanitary and
Phytosanitary Measures, reprinted in World
Trade Organization, The Legal Texts: The
Results of the Uruguay Round of Multilateral
Trade Negotiations (Cambridge: Cambridge
University Press), 59-72.
 See, e.g., Philippines, Notification of Emergency
Measures, WTO Doc. G/SPS/N/PHL/50, Jan. 13,
2004 (temporary ban on importation of domestic
and wild birds and their products from the
Republic of Korea).
 "Global Bid to Beat Bird Flu," CNN.com, Jan.
27, 2004, at www.cnn.com
("The WHO is also highly concerned because
the bird flu appears resistant to cheaper
anti-viral drugs used to treat regular influenza.").
 "Bird Flu: Global Response Sought," supra
The purpose of ASIL Insights is to provide
concise and informed background for developments
of interest to the international community.
The American Society of International
Law does not take positions on substantive
issues, including the ones discussed
in this Insight.