The impact of climate change in the Arctic has drawn considerable global attention. As numerous scientific studies have shown, climate in the region is an indicator for climate change worldwide. Moreover, climate change in the Arctic has been recognized for some time. Average temperature has risen twice as fast in the Arctic as in the rest of the world. Of particular interest is the rapidly receding and thinning Arctic Ocean sea ice, which demonstrates how quickly climate change progresses—the year 2012 marked the lowest summer sea ice since satellite measurements began in 1979. The rise in temperature will have overwhelming repercussions for the region’s ecosystems and render its economic potential more accessible. Sea ice retreat and other changes have brought about opportunities for economic development and, in turn, have prompted numerous studies on how the region’s oil and other natural resources could be exploited, its tourism potential increased, and its navigational waterways utilized.
This Insight will first briefly review the work of the Arctic Council and examine how this inter-governmental forum has tried to respond to climate change challenges in the region by producing scientific assessments and soft law guidance. Scientific assessments have changed the way the region is perceived, from the frozen desert of the past to the rapidly transforming space of today. This altered perspective has put pressure on the Council to transform from a decision-shaping to decision-making body. This is evidenced by the Council’s current push for legally binding agreements between the eight Arctic states: Canada, Denmark, Finland, Iceland, Norway, Sweden, the Russian Federation, and the United States. Finally, a few conclusions are provided in terms of what role international law could and should play in responding to climate change in the Arctic.
International governance in the Arctic contrasts sharply with that of Antarctica. In the Antarctic, the sovereignty question has been “frozen” by the 1959 Antarctic Treaty, meaning that no territorial sovereigns exist on the continent. In the Arctic, however, all land areas are firmly under the sovereignty of Arctic states. Most Arctic waters now fall within their maritime jurisdictions, although the core of the Arctic Ocean remains a part of the high seas.
From the viewpoint of governance, the Arctic is very complex. The three federal states—the Russian Federation, the United States and Canada—exercise certain powers at the federal level and some powers at sub-unit levels (e.g., in Alaska (U.S.) or Nunavut (Canada)). Even though the European Union (EU) is not a state under international law, it is functionally very close to being a federal state. Of the Arctic states, Finland, Sweden, and Denmark are EU member states. The Kingdom of Denmark comprises three parts, including the Arctic Faroe Islands and Greenland; the native Inuit population of Greenland recently gained a Self-Rule status (in contrast to its old Home-Rule status), with concomitant enhanced autonomy and a future possibility to secede from Denmark.
Thus, when the time was ripe to commence Arctic-wide cooperation between the Arctic states after the end of the Cold War, an action program rather than an international treaty was adopted. The result is the 1991 Arctic Environmental Protection Strategy (“AEPS”). The Arctic Council was established in 1996 in Ottawa, Canada by means of a declaration. Participants in the Council are: member states, permanent participants, and observers. Uniquely in inter-governmental cooperation, regional indigenous peoples’ organizations have the status of permanent participants. Member states must fully consult permanent participants before a consensus is agreed upon; this greatly enhances the indigenous peoples’ potential to influence decision-making in various bodies within the Arctic Council.
Until recently, Arctic cooperation has functioned for over fifteen years in a fairly consistent mode of operation. Until 2011, the main work was conducted by the six working groups, focused on environmental protection and sustainable development. Senior Arctic officials from each Arctic state coordinated various activities within the Council between biannual ministerial meetings and annual deputy ministers’ meetings. But, in response to alarming climate change, the Council has recently strengthened the way it functions. In May 2011, the ministerial meeting decided to establish a permanent secretariat and adopted the first ever legally binding instrument: the Search and Rescue (“SAR”) agreement, described below.
Responding to Climate Change in the Arctic
During the period the U.S. held the chairmanship of the Council, from 1998 to 2000, the Arctic Council and the International Arctic Science Committee (IASC) commenced work on the Arctic Climate Impact Assessment (“ACIA”), and their findings were released in a publicly accessible format in 2004. Even though a 2001 report by the Intergovernmental Panel on Climate Change (“IPCC”) had already noted that warming is more intense in the Arctic, the Arctic Council-sponsored ACIA report established the Arctic as an early warning region for climate change observation. In addition to revealing serious impacts on the environment, its ecosystems and local communities, the ACIA led to important changes in the way the Arctic is perceived. While the AEPS still conveyed an image of an inaccessible, inhospitable, frozen desert, the ACIA findings demonstrated that the Arctic is a region undergoing dramatic transformation. The public view developed from an understanding of the Arctic as being naturally guarded from human activity to an image of the region as dynamic and rich with economic potential, and therefore requiring stricter governance measures. The ACIA was followed by other key Council assessments on issues that included oil and gas activities and increased shipping in the region.
The scientific role of the Council has been of importance in two respects. First, because many scientists who were part of the ACIA are also contributors to Intergovernmental Panel on Climate Change (“IPCC”) reports, their research has played a big part in our understanding of causes and effects of climate change and ACIA data has been directly used by the fourth IPCC assessment (released in 2007). More importantly, the awareness-raising function of Council-sponsored assessments has influenced governance at different jurisdictional levels in the Arctic as governments commence climate change adaptation planning in the region.
Given the enormity of challenges posed by climate change in the Arctic, the Arctic Council has gradually started to promote legal responses, rather than its traditional soft-law regulation through guidelines, best practices, and manuals. These measures serve their purpose in some policy areas, especially since the region’s indigenous peoples’ organizations can participate in their drafting. Some of the soft-law guidance has likely made its way into practice, although this is often difficult to verify, given that the Council does not review how its soft-law guidance is being followed. At least two cases indicate how soft-law regulation is limited, particularly where member states have viewed guidance as an intrusion upon their sovereignty. This was the case with the process under the Conservation of the Arctic Flora and Fauna Working Group to establish and monitor the Circumpolar Protected Area Network (“CPAN”), and also in regard to the Environmental Impact Assessment (“EIA”) Guidelines. Both normative processes have gradually faded away. CPAN was largely replaced by the Convention on Biological Diversity’s Programme of Work on Protected Areas, and the EIA Guidelines were gradually forgotten.
Given the limitations of soft law, the Arctic Council has started to sponsor legal solutions to counter challenges caused by climate change, particularly in the case of sea ice retreat. Partly as a result of another major Council assessment—the 2009 Arctic Marine Shipping Assessment (AMSA)—the Council urged its members to act in concert to come up with more comprehensive, stringent, and mandatory rules on shipping in extreme polar conditions. The legal work to convert the non-binding 2009 Polar Code into mandatory measures is now in progress under the aegis of the International Maritime Organization ("IMO").
The Arctic Council has been able to catalyze the making of international treaties between the eight Arctic states in policy areas of great importance. These include agreements to enhance human and environmental security in a region where there is only a scarce infrastructure for responding to emergencies. The Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (“SAR”) was signed during the May 2011 Council ministerial meeting. The agreement is meant to strengthen search and rescue coordination and cooperation efforts in the Arctic by allocating responsibilities to each Arctic state in its own jurisdiction and by establishing procedures for states to cooperate in cases of emergency. There is also an ongoing process to conclude an agreement on marine oil pollution preparedness and response for the Arctic, which is scheduled to be signed during the May 2013 ministerial meeting. This agreement will likely apply not only in the Arctic Ocean waters but also in the Baltic Sea (Gulf of Bothnia), and may also have a few legally non-binding appendices (e.g., a manual on emergency response). Both treaties are firmly anchored in broader agreements already in existence, such as the 1979 International Convention on Maritime Search and Rescue, the 1944 Convention on International Civil Aviation, and the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation.
The Role of International Law
International law can potentially play many roles in securing better regional responses to climate change. One of these roles has recently been used by the Arctic Council as it began responding to challenges relating to oil spillage and other emergencies in the Arctic via international treaties. The Council’s move to use treaties capable of coordinating activities in a more reliable way is only natural, given that regulation involves proactive responses from Arctic states in their respective territories in preparation for risks posed by new economic activities enabled by the effects of climate change. Even if the SAR and the possible oil spills agreement have been negotiated under the auspices of the Council, they will function autonomously since the parties to such agreements will have separate meetings. It also remains to be seen what roles the permanent secretariat and Council working groups will assume over time when these and other agreements are created and implemented.
Frequently states use international treaties to lay foundations for regional cooperation. Legal instruments, such as international treaties or inter-governmental organizations, are often seen as necessary foundations for long-term, committed cooperation between states. An overarching international treaty has been suggested by various actors—most recently by the Arctic Parliamentarians in their September 2012 annual meeting—to govern the Arctic. Arctic states have until now rejected this approach, instead firmly endorsing the Arctic Council as the predominant forum for international cooperation. An overarching Arctic treaty would most likely be able to offer a better platform for integrating the currently fragmented policy and legal activities within the Arctic.
Some argue against a formalization of the Council, given that the region’s indigenous peoples’ organizations can participate in its work as permanent participants—a status which they enjoy within no other inter-governmental cooperation procedure, being normally dubbed as non-governmental organizations. In a similar vein, the Barents international cooperation has been able to involve the European Commission, national governments, county levels of government, and regional indigenous peoples in its work.
Although the Arctic Council is not a treaty-based organization, it seems to have gradually institutionalized itself to the extent that it can act as a foundation for permanent cooperation between various regional stakeholders. Moreover, the Council has been able to combine its scientific work with soft and hard law mechanisms, a mixture that functions creatively in responding to multi-faceted challenges posed by climate change to the region.
Timo Koivurova, an ASIL member and co-Chair of the ASIL International Environmental Law Interest Group, is Research Professor and Director of The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. He is also the Chair of the Thematic Network on Arctic Law (University of the Arctic).
In the last months of 2011, a controversy emerged involving research on highly pathogenic avian influenza A (H5N1) undertaken in The Netherlands and the United States. The projects produced H5N1 strains more transmissible among mammals. These results alarmed those worried about bioterrorism and accidental release of dangerous pathogens. A U.S. federal advisory body recommended that aspects of the research not be published. The controversy drew attention to governance of research designed to protect health but that creates biological agents, knowledge, and/or scientific methodologies potentially dangerous to national security and public health. This Insight describes this controversy and identifies international legal issues it highlights.
H5N1 is a global health concern. It first caused human infections and deaths during a poultry outbreak in Hong Kong in 1997. It re-emerged globally in 2003 and 2004, resulting in more human cases and fatalities. This H5N1 strain is virulent in humans, with a mortality rate of approximately 60%. However, it does not readily transmit between people. The virus’ spread through avian populations, and increased human cases caused by contact with infected birds, created global health nightmares by the middle of last decade. Experts feared that this virulent strain might mutate to be more transmissible in humans. Such a mutation could trigger a catastrophic pandemic. The H5N1 virus caused national and international authorities to scale-up pandemic preparedness. Although this virus has not mutated into a human pandemic strain, it continues to cause concern—including that mutations with pandemic potential could emerge.
H5N1 Research Controversy
In September 2011, scientists in The Netherlands and the United States announced that independent experiments produced H5N1 strains with enhanced transmissibility in mammals. The projects sought to generate information about the H5N1 virus given concerns about potential mutations. The U.S. National Institutes of Health funded both projects.
However, the research caused national security and public health anxieties and produced controversy about whether the findings should be fully published. The National Science Advisory Board for Biosecurity (“NSABB”), which advises the U.S. Department of Health and Human Services (“DHHS”), recommended in December 2011 that the researchers and journal editors publish “the general conclusions highlighting the novel outcome . . . but not include the methodological and other details that could enable replication of the experiment by those who would seek to do harm.” DHHS agreed with these recommendations, but neither the researchers nor the publishers are legally bound to follow them. However, experts raised concerns that such research potentially also threatens public health through accidental release, escape, or theft of the research strains because of inadequate biosecurity and biosafety in laboratories, leading to arguments that these strains should be destroyed.
The scientific journals in question have agreed not to publish the research findings in full, but the matter is far from resolved, especially in terms of what should happen to the H5N1 strains produced by the research and who should have access to the full findings. More generally, the controversy generated questions about the prudence of conducting this kind of research, the standards under which it is undertaken and managed, disclosure of findings and methodologies, and post-research handling of more dangerous strains produced through research. The controversy’s international dimensions fostered calls for strengthened cooperation given perceived weaknesses in international governance.
This is not the first time these questions have arisen. Previous research, such as re-creation of the influenza strain responsible for the great pandemic of 1918-1919, stimulated similar issues. Advances in life sciences, such as synthetic biology, continue to provide more ways to manipulate microbial organisms for a range of scientific, medical, and commercial purposes. Concerns about the H5N1 research have again forced scientists and policy makers to think about risks associated with well-intentioned, lawful, and potentially valuable research that might facilitate bioterrorism or result in accidental release or escape. The World Health Organization (“WHO”) captured the conundrum when it expressed concern about potentially adverse consequences of the H5N1 research but stressed that research continue “so that critical scientific knowledge needed to reduce the risks posed by the H5N1 virus continues to increase.” Balancing costs and benefits requires governance of risky research, and the international scale of such research brings international law into the picture.
International Law and the H5N1 Research Controversy
Biological Weapons Convention
The Biological Weapons Convention (“BWC”) prohibits development, production, stockpiling, and transfer of “microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes” (Article I). Other BWC obligations flow from this prohibition, such as the requirement to “take any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition, or retention of the agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, within the territory of such State, under its jurisdiction or under its control anywhere” (Article IV). States parties supplemented these obligations with non-binding confidence building measures that encouraged information sharing on biological defense research and research facilities.
No one has argued that the H5N1 research violated the BWC. The BWC does not apply because the H5N1 research has a peaceful purpose related to health protection. This outcome reflects the difficulty of using the BWC to address potentially adverse consequences of research undertaken to benefit health. At most, the BWC prohibits states parties with jurisdiction over potentially dangerous pathogens associated with lawful research from using them for purposes with no legitimate justification.
However, BWC states parties have concerns about dangers scientific developments present to the treaty. At the BWC’s Seventh Review Conference in December 2011, states parties agreed to examine developments in science and technology during intersessional meetings from 2012 to 2015. Even so, the BWC’s focus on hostile uses of biological agents means that it cannot, as constructed, regulate research that has prophylactic, protective, or other peaceful purposes.
International Law on Bioterrorism
International law specific to bioterrorism does not regulate the kind of research done on the H5N1 virus. A UN treaty criminalizes use of biological agents in terrorist bombings, which is irrelevant in this context. Binding Security Council decisions require UN members to “take and enforce effective measures to establish domestic controls to prevent the proliferation of . . . biological weapons and their means of delivery, including by establishing appropriate controls over related materials.” These requirements apply to pathogens (such as more transmissible H5N1 strains used, created, or altered by peaceful research) and underscore the importance of physical biosecurity in research laboratories. The Security Council decisions do not, however, expressly address the processes of vetting lawful research or publishing research results.
International Law on Health Threats
International law on health threats, principally the International Health Regulations (2005) (“IHR”) adopted by the WHO, does not regulate the kind of research undertaken in the H5N1 projects. The IHR seeks to strengthen surveillance and response concerning public health emergencies of international concern (Article 2), including those associated with new influenza viruses (Annex 2). However, the IHR does not regulate scientific research.
WHO observed during the H5N1 research controversy that researchers should comply with the Pandemic Influenza Preparedness Framework (“PIP Framework”) approved by the WHO in May 2011. The PIP Framework is a non-binding arrangement to facilitate sharing influenza viruses and benefits, such as vaccines, produced by research on shared samples. WHO stressed the PIP Framework’s requirement for researchers to collaborate with, and acknowledge, scientists from the country of origin in studying shared viruses. The PIP Framework has not elsewhere formed part of the concerns generated by the H5N1 controversy.
However, WHO’s linkage of the research with the PIP Framework raises other questions, such as how the Framework’s benefit-sharing components apply to research using shared viruses that produces more dangerous pathogens or methodologies. If concerns exist about publishing research findings (including scientific methodologies), worries about sharing such information through the PIP Framework might arise. Elsewhere, the PIP Framework incorporates biosecurity and biosafety standards in provisions on sharing viruses, which would apply if countries with jurisdiction over more dangerous strains produced by research shared them under the Framework.
International Law and Scientific Research Generally
More generally, states have used international law to regulate applications of scientific advances but not basic research informing those advances. Treaties (including the BWC) ban or regulate weaponization of certain technologies created through scientific research. The treaty banning human cloning does not regulate the science of cloning as such because it acknowledges “the progress that some cloning techniques themselves may bring to scientific knowledge and its medical application[.]”
International Human Rights Law
Although no government has acted against the researchers and their findings, the H5N1 controversy implicates international human rights law. In terms of research process, international law bans research on humans conducted without informed consent, which is not at issue here. The H5N1 controversy also raised questions about restricting publication of research, which touches on freedom of expression as a human right. Under international law, governments can restrict this right by law when necessary to protect national security or public health —the reasons people worry about the H5N1 research. The controversy provoked thinking about whether governments should restrict or prohibit certain kinds of lawful, well-intended research, which brings the freedom of scientific enquiry into play.  This freedom, too, is not absolute because governments can limit it to protect national security or public health.
This overview reveals few binding international rules applicable to lawful but potentially dangerous scientific research. In terms of permitting such research, international law—beyond the right to freedom of scientific enquiry—contains no specific regime. As the H5N1 controversy demonstrates, state practice prohibiting or seriously restricting potentially dangerous research designed to benefit health does not, at present, exist. Similarly, the H5N1 and earlier research controversies reveal reluctance by governments responsible for, or with jurisdiction over, the research or its publication to exercise coercive powers to prevent dissemination of research findings or methodologies.
States have used international law to obligate governments to ensure that researchers working with dangerous pathogens conduct research under appropriate and adequate biosecurity and biosafety standards. However, as the H5N1 controversy highlighted, these obligations remain general in nature, with specific guidance provided by non-binding documents. As such, these duties do not require countries, for example, to engage in H5N1 research only in laboratories having the highest biosecurity and biosafety requirements (i.e., BSL-4 labs). Nor is national implementation of the general biosecurity obligations subject to international oversight. The H5N1 controversy prompted criticism of the status quo and support for strengthened cooperation.
Models for International Research Governance
The Smallpox Model
One strategy could reflect how states handle the smallpox virus. A WHO-led effort eradicated smallpox—one of history’s great microbial killers—at the end of the 1970s, and WHO members have allowed WHO to establish policies for secure handling of the remaining virus samples and to oversee smallpox research. This approach provides for international oversight of smallpox research and assurance that it is undertaken securely and safely. The strategy is not binding under international law because it arises from WHO resolutions, which do not create legal obligations. Governments could adapt this model to legitimate but potentially dangerous research, such as research with influenza strains virulent in humans. However, differences between an eradicated virus held in very limited number of laboratories and pathogens present in nature and laboratories all over the world would create severe challenges for adapting the smallpox approach.
Mandatory International Oversight
Well before the H5N1 research controversy, experts proposed addressing potentially dangerous research on biological agentsthrough binding international regimes. One effort envisioned creating a treaty that “would involve three major innovations over existing oversight mechanisms: it would subject the most consequential areas of research to international jurisdiction; it would apply oversight comprehensively within all jurisdictions; and it would make the oversight process a legal obligation.” Achieving a mandatory and comprehensive regime would face many obstacles, even in the aftermath of the H5N1 research controversy.
Next Step: WHO-Led International Talks
In response to the controversy and calls for it to play a leading role, the WHO has agreed to facilitate negotiations to identify the key issues and work towards solutions.These negotiations have to address issues related to the Dutch and American research, including what should be done with the H5N1 research strains and who can get access to the full research findings. Longer-term challenges involve developing rules and processes for better handling the scientific, public health, and national security interests affected by risky research on pathogens. Whether these negotiations produce new international policy, law, and governance mechanisms is too difficult to predict but too important to ignore.
Many European countries have experienced outbreaks caused by a dangerous strain of Escherichia coli (E. coli) bacteria, and two countries have, to date, reported deaths related to these outbreaks. Responses have involved actions that implement and affect international legal regimes on public health and international trade. This Insight describes these E. coli outbreaks and the international legal issues the outbreaks have raised.
The European E. coli Outbreaks
On June 5, 2011, the World Health Organization (“WHO”) stated that twelve European countries had reported outbreaks of enterohaemorrhagic E. coli (“EHEC”) and E. coli-caused haemolytic uraemic syndrome (“HUS”). E. coli-related diseases are “transmitted to humans primarily through consumption of contaminated foods[.]” EHEC can cause bloody diarrhea and abdominal pain. HUS is a life-threatening disease caused by toxins produced by EHEC. HUS is characterized by acute renal failure, anaemia, and low platelet count. In prior outbreaks, HUS predominantly affected children, but the European outbreaks involve many adults.
As of June 5, 2011, twelve European countries had reported, cumulatively, 658 cases of HUS and 1608 cases of EHEC, for a total 2266 E. coli-related cases. The epicenter of the outbreaks is Germany, which (as of June 5, 2011) had reported 627 cases of HUS and 1536 cases of EHEC, with fifteen deaths from HUS and six from EHEC. One fatality from HUS has been reported outside Germany. The European outbreaks have become one of the biggest E. coli epidemics in history.
An unusual, “super toxic” strain—Shiga-toxin producing E. coli O104 (STEC O104:H4) —is thought to be the pathogenic cause. News reports indicate that European physicians have been alarmed that the strain appears resistant to antibiotics. As of June 6, 2011, the source of the outbreaks had not been determined, but is believed to be associated with consumption of raw vegetables perhaps grown with manure containing the deadly E. coli strain.
Application of International Law to the E. coli Outbreaks
Obligations on disease reporting
The main international legal instrument applicable to the E. coli outbreaks is the WHO’s International Health Regulations (2005) (“IHR (2005)”). The IHR (2005) is legally binding on all WHO member states. The IHR (2005)’s purpose is “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.”
Under the IHR (2005), states parties must report to the WHO any disease event that may constitute a public health emergency of international concern (“PHEIC”). A PHEIC is an extraordinary event that constitutes a public health risk to other states through the international spread of disease that potentially requires a coordinated international response. A disease event might constitute a PHEIC, and thus must be reported to the WHO, if a state party can answer any two of four questions affirmatively:
- Is the public health impact of the event serious?
- Is the event unusual or unexpected?
- Is there significant risk of international spread?
- Is there a significant risk of international travel or trade restrictions?
Affected European countries have reported their outbreaks to the WHO as disease events that may constitute a PHEIC. The outbreaks have had serious public health impact, are unusual because of the “super toxic” strain, have spread to numerous countries, and have triggered trade restrictions. WHO is sharing information on the outbreaks and offering technical assistance to affected countries. The WHO Director-General has not convened the IHR (2005)’s Emergency Committee to advise whether she should declare an actual PHEIC and issue temporary recommendations to guide how countries should respond.
So far, problems that in the past plagued compliance with international legal obligations to report disease events have not appeared with the E. coli outbreaks. Affected countries have not tried to conceal the outbreaks, and news reports do not contain concerns that European governments lack capacities to identify and respond to the threat. The outbreak is, however, stressing health capacities in northern Germany.
Obligations related to responses to disease outbreaks
The IHR (2005) requires states parties to avoid responses to disease events that lack a scientific and public health basis and that impose unnecessary restrictions on international trade and travel. These obligations also exist under EU rules on freedom of movement of goods and in the World Trade Organization (“WTO”) Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”). With outbreaks, states often impose trade and travel restrictions that are not informed by science or that go beyond what public health principles support. For example, during the pandemic influenza A (H1N1) or “swine flu” outbreak in 2009, some countries imposed import bans on pork products that had no scientific or public health justification.
The European E. coli outbreaks have damaged trade and triggered trade restrictions. Early suggestions by German government authorities that the outbreak source was cucumbers from Spain caused damage to Spanish exports as European countries pulled Spanish produce from shelves, leading the Spanish government to assert that it would seek “compensation for its farmers, who say lost sales are costing them 200 million euros ($287 million) a week and could put 70,000 people out of work.” The EU Commissioner on Health and Consumer Policy has stated that the EU would “consider any ban on any product as disproportionate” and is working “to address the hardship faced by this group of our citizens that has also been hit hard by the E. coli outbreak.” Outside the EU, Russia imposed a ban on June 2, 2011, on raw vegetables from all EU countries, prompting complaints from EU members that such a ban was not justified and was disproportionate.
The E. coli outbreaks have, thus, triggered trade responses that might violate EU law, the IHR (2005), and the SPS Agreement. WHO has stated that it does not recommend trade or travel restrictions as responses to the E. coli outbreaks, indicating that such measures have no scientific or public health justification. This position means that the Russian ban on raw vegetable imports is a disproportionate and unnecessary response. EU law might help Spain remove trade barriers within the EU, but it will not help EU members affected by Russia’s trade restrictions. However, neither the IHR (2005) nor the SPS Agreement offers harmed exporting states effective remedy options.
Russia is a state party to the IHR (2005), but this agreement contains no mechanisms that could deliver timely relief to states parties harmed by unjustified trade restrictions. This problem was highlighted in April 2011 by the IHR Review Committee in its assessment of the IHR (2005)’s implementation during the 2009 pandemic influenza A (H1N1) outbreak. The IHR Review Committee stated: “The most important structural shortcoming of the IHR is the lack of enforceable sanctions. For example, if a country fails to explain why it has adopted more restrictive traffic and trade measures than those recommended by WHO, no legal consequences follow.”
However, the IHR Review Committee’s recommendation merely advised WHO to be more energetic in obtaining “the public-health rationale and relevant scientific information, share it with other States Parties, and, where appropriate, request reconsideration” from the state imposing the restriction. The recommendation’s weakness reflects the lack of any process in the IHR (2005) to sanction states parties for violating obligations not to impose unjustified and unnecessary trade restrictions in responding to disease outbreaks.
Complaints under the SPS Agreement are subject to the compulsory WTO dispute settlement process. However, Russia is not a WTO member, which means the WTO members affected by the Russian ban have no WTO recourse. Even if Russia were a WTO member, past episodes involving unjustified and unnecessary trade restrictions in response to disease outbreaks indicate that the WTO dispute settlement process (1) does not move quickly enough for a binding decision to be made before the trade restrictions in question are lifted, and (2) does not provide compensation as a remedy for economic losses incurred while the restrictions were in force.
Thus, the European E. coli outbreaks underscore a long-standing problem with international legal obligations under the WHO and WTO regimes that seek to regulate trade-related responses to disease outbreaks.
A similar problem has also existed with international legal obligations not to apply unjustified and unnecessary restrictions to, or health measures against, travelers, as evidenced by concerns that quarantine of travelers during the pandemic influenza A (H1N1) outbreaks violated the IHR (2005). These obligations seek to minimize the impact of disease events on international travel and to support human rights. So far, the European E. coli outbreaks do not appear to have resulted in restrictive or intrusive measures on individuals leaving countries suffering outbreaks, even though the strain’s spread has been associated with persons traveling from Germany. Persons traveling to affected areas have been advised to avoid consuming raw vegetables. However, as has happened in past disease events, if the outbreaks spread and/or worsen, governments might feel compelled to enact measures against persons traveling from affected countries, if for no other reason than demonstrating that they are “doing something” about the threat.
The E. coli outbreaks in Europe have proved dangerous and deadly and serve as yet another reminder of the mayhem the microbial world can cause. In deciphering the E. coli strain responsible for the outbreaks, concerns have arisen that its antibiotic resistance might derive from widespread use of antibiotics in raising livestock —an increasing global health concern that neither the IHR (2005) nor any other international legal regime specifically addresses.
More broadly, these outbreaks happened in affluent countries that have capacity to identify and respond to pathogenic threats. In all likelihood, these capacities will allow European countries to bring the outbreaks under control. Other countries, especially low-income countries, are not in the same position. The IHR (2005) requires states parties to have minimum surveillance and response capacities to handle serious disease events by June 2012. However, the IHR Review Committee observed in April 2011 that “many States Parties lack core capacities to detect, assess and report potential health threats and are not on a path to complete their obligations for plans and infrastructure by the 2012 deadline specified in the IHR.” Europe will recover from these E. coli outbreaks, but the global problem of inadequate public health capacity remains unaddressed despite international law directed at that very problem.
About the Author:
David P. Fidler, an ASIL member, is the James Louis Calamaras Professor of Law at the Indiana University Maurer School of Law and an Associate Fellow with the Chatham House Centre on Global Health Security.