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.
Following the eruption of the Icelandic volcano Eyjafjallajökull on April 14, 2010, a cloud of ash, helped by winds, quickly spread across Europe. Since volcanic ash is a recognized threat to aircraft, most European civil aviation authorities, following well established and widely published international safety protocols issued by the International Civil Aviation Organization (ICAO), closed their airspace. The impact of the six-day closure was enormous: more than 100,000 flights were cancelled and about ten million passengers were unable to travel. In many cases, passengers were stranded in another country without any immediate possibility of going home. This situation not only placed the existing international framework for operational response to volcanic ash under a stress test, it also highlighted the limited level of integration achieved by the European Union (EU) in the civil aviation sector.
The flying bans were instituted because of fears that the volcanic ash—a mixture of glass, sand, and rock particles—could seriously damage aircraft engines. The national measures were based on scientific advice provided by the Volcanic Ash Advisory Centre (VAAC) and were implemented by the European Organization for the Safety of Air Navigation (EuroControl). Yet, even before the bans were lifted, recriminations among all those involved began. National authorities came under pressure from European airlines, several of whom claimed that successful test flights were conducted in the supposed danger zone. After three days of flying bans, all major airlines vocally claimed that authorities had been overly cautious in using a precautionary approach. In addition, critics disputed the model (Numerical Atmospheric-dispersion Modelling Environment, or NAME) used by the VAAC, which was originally developed to track radioactive fallout from Chernobyl nuclear disaster in 1986. They dismissed its model-based estimates of the extent of the ash cloud as “theoretical.” National authorities defended their “zero risk” regulatory response, claiming that it was consistent with the guidelines developed by ICAO in the 2007 Manual on Volcanic Ash, as well as with the Volcanic Ash Contingency Plan – EUR Region. In turn, scientists strenuously defended the predictions made by the NAME atmospheric dispersion model underpinning the ICAO guidelines.
The European Regulatory Response
Meanwhile, the cloud was not moving. As Europe was facing another week of disruption, the European Commission – acting outside of its competence – took the initiative over the weekend of April 17-18, with the Spanish Presidency and EuroControl, to propose a coordinated European approach. As the situation evolved, the NAME model and the national risk management procedures were tested. EU Member States, national air safety authorities, national air traffic controllers, and EuroControl realized that a more differentiated assessment of risk from the ash cloud was needed. But no Member State could act independently by departing from the ICAO guidelines and taking the first step to introduce change.
The guidelines are unequivocal regarding the danger of volcanic ash for aircraft engines:
Unfortunately, at present there are no agreed values of ash concentration which constitute a hazard to jet aircraft engines . . . but it is worth noting at this stage that the exposure time of the engines to the ash and the thrust settings at the time of the encounter both have a direct bearing on the threshold value of ash concentration that constitutes a hazard. In view of this, the recommended procedure in the case of volcanic ash is exactly the same as with low-level wind shear, regardless of ash concentration — AVOID AVOID AVOID.
Yet, five days after the enforcement of the national flying bans, on April 19, EuroControl Member States unanimously agreed to move to “a co-ordinated European approach in response to the crisis.” As a result, new procedures were defined, which led to a partial reopening of the European air space and hence reduced the human and economic impact on passengers, airlines, and cargo. The new measures came into force on April 20 and established three types of zone (depending on the degree of contamination): The first zone was located in the central nucleus of the emissions, where a full restriction of operations was maintained; the second consisted of an intermediary zone, where Member States could allow flights “in a coordinated manner [with other members]” but with additional restrictions and safety controls; and the third zone, not affected by the ash, had no restrictions. These procedures, based on a more differentiated risk assessment and paving the way for more coordinated decisionmaking among states, enabled “a progressive and coordinated opening of European Air Space.” By April 22, eight days after the eruption had begun, regular flight schedules resumed.
The Legal Implications of the Crisis
The situation created by the protracted closure of the European airspace has been so extraordinary that the regulatory action leading to the disruption continues to be at the center of a growing controversy. Beyond the personal dramatic situations experienced by millions of stranded passengers and difficult implementation of the Passenger’s Rights Regulation, the air industry has incurred significant costs and suffered reduced revenues. To address these concerns, the Commission has concluded that Member States should rapidly implement measures in favor of the air industry that would repair the damage caused by the natural disaster. Moreover, the disruption may also have some unforeseen financial consequences for the EU’s Emissions Trading Scheme (ETS). Indeed, since 2010 is the monitoring year for the establishment of the number of Aviation Allowances (AAs) allocated for free to airlines, the reduced activity in April could affect the distribution of those allowances between aircraft operators.
The regulatory consequences stemming from the crisis were not limited to the aviation sector. Thus, for instance, since April 14, 2010, the European Commission has raised questions about public health resulting from the ash cloud that covered large parts of the European Union. As a result, the Commission asked the European Centre for Disease Prevention and Control (ECDC) to assess the potential impact of the ash cloud on public health, and the European Food Safety Authority (EFSA) to obtain urgent advice on the possible risks for public and animal health of the contamination of the feed and food chain. The EFSA, in record time, concluded that, based on the available information, the potential risk of contamination posed by the volcanic ash-fall to drinking water, vegetables, fruit, fish, milk, meat, and feed was negligible.
Finally, the closure of the European airspace disrupted the travel of many third country nationals, who are subject to strict visa requirements during their stay or transit through the territory of the Schengen States. Urgent measures were taken for certain categories of travelers and, in particular, for people holding a short stay visa that had expired on or after April 15, 2010 and others not intending but needing to enter a Member State’s territory.
The Not-yet European Sky
EU integration does not extend to air traffic management. Only Member States can decide whether or not to close their airspace. As a result, the EU boasts twenty-seven different air traffic zones, each able to impose a flying ban. This fragmentation is the result of a history of air traffic control remaining closely associated with sovereignty, and hence confined within national borders. Indeed, air traffic control is still perceived as governed by both national defense and sovereignty interests. This also reflects one of the tenets of the Chicago Convention according to which each State is responsible for safety oversight in civil aviation within its jurisdiction.
Yet, efforts have been made toward integration of the EU airspace. Following the adoption of the Single European Sky (SES I) legislation in 2004, air traffic management was brought under the EU common transport policy. The idea was to redesign the European sky according to traffic flows rather than national borders. Yet, as unambiguously exemplified by the patchwork regulatory response to the current crisis, a truly “single” sky has not been achieved. To remedy this situation, another reform, the “Single European Sky Package” (SES II), was adopted by the European Parliament and the Council in November 2009. To accelerate the full implementation of the SES II, the Commission seems ready to leverage the volcanic ash crisis to create political momentum. In the aftermath of the crisis, the Commission issued a set of encouraging proposals. First, it proposed the creation of a European Aviation Crisis Coordination Cell (EACCC), gathering together EuroControl, European Air Safety Agency (EASA), member states, and air transport stakeholders. This is exactly what the EU did not have available during the crisis. The EACCC will mainly facilitate the management of crisis situations affecting aviation in the EU and will be empowered to launch unmanned aircraft vehicles (UAV) to collect data. Second, the Commission proposed the nomination of Functional Airspace Blocks (FAB) coordinators. FABs are nine airspace blocks based on operational requirements and established regardless of State boundaries, as foreseen in SES II. Third, the Commission proposed that the central European network management be appointed by the end of 2010 and authorized to develop a more harmonized and coordinated approach to risk and flow/capacity assessment.
Although existing ICAO guidelines proved effective in preventing accidents in the wake of the recent eruption of the Eyjafjallajökull volcano, actions taken by national authorities resulted in unprecedented disruptions of service and severe economic impact to the airline industry, as well as to sectors relying on air transport services. It became clear that more needed to be done to establish a safety risk assessment framework for determining whether it is safe to operate in airspace contaminated by volcanic ash. At the urging of industry, ICAO agreed to form a multi-disciplinary International Volcanic Ash Task Force (IVATF), and terms of reference have since been agreed upon. In light of its own experience, the EU Commission has decided to elaborate a new methodology for safety risk assessment and risk management in relation to the closure of airspace, to be proposed to the next ICAO general assembly in September 2010. In the meantime, by leveraging the disruption caused by the volcanic ash crisis, the Commission is likely to accelerate the implementation of SES II, thus institutionalizing some of the ad hoc mechanisms and procedures developed during the eruption. Undoubtedly, this crisis has added new impetus to the long-running struggle to unite Europe’s airspace. As shown by this crisis, more than twenty years after the EU eliminated its internal land borders, the Union still lacks an integrated airspace. Time seems ripe for the EU to conquer its own sky.
Alberto Alemanno, an ASIL member, is Associate Professor of EU Law at HEC Paris and Adjunct Professor at Georgetown Law School, where he will be teaching Global Risk Regulation in spring 2011. He is the editor of the European Journal of Risk Regulation and the area editor for Policy of Risk Analysis: An International Journal. He can be reached at email@example.com.
 ICAO was created in 1944 by the Convention on International Civil Aviation and is headquartered in Montreal, Canada.
 At its height, in April 17-18, 2010, seventeen EU Member States had a full airspace closure and two were partially closed. At the same time, six non-EU States were fully closed.
 Nine Volcanic Ash Advisory Centers around the world are responsible for advising international aviation of the location and movement of clouds of volcanic ash. They are part of an international system set up by ICAO in coordination with the World Meteorological Organization (WMO) and called the International Airways Volcano Watch (IAVW). In particular, the London VAAC is responsible for monitoring and forecasting the movement of volcanic ash over the United Kingdom, Iceland, and the north-eastern part of the North Atlantic Ocean.
 EUROCONTROL is an international, not an EU, organization, established in 1960 by Belgium, France, Germany, Luxembourg, Northern Ireland, the Netherlands, and the United Kingdom through the EuroControl International Convention relating to Co-operation for the Safety of Air Navigation. This convention entered into force in 1963 and has thirty-eight Member countries, including the European Union.
 See Int’l Civil Aviation Org. [ICAO], Manual on Volcanic Ash, Radioactive Material and Toxic Chemical Clouds, ICAO Doc. 9691 (2d ed. 2007), available at http://www.paris.icao.int/news/pdf/9691.pdf [hereinafter Manual] (providing that the NAME has evolved into an all-purpose dispersion model capable of predicting the transport, transformation, and deposition of a wide class of airborne materials (e.g., nuclear material, volcanic emissions, biomass smoke, chemical spills, foot-and-mouth disease).
 Statement by Giovanni Bisignani, Director, General, & Chief Executive of the Int’l Air Transport Ass’n (IATA) (Apr. 19, 2010).
 See Manual, supra note 5.
 Volcanic Ash Contingency Plan – EUR Region, EUR Doc 019 (2d ed. 2009), available at http://www.paris.icao.int/documents_open/files.php?subcategory_id=63.
 See Manual, supra note 5, § 3.4.
 See Memorandum, Volcanic Ash Crisis: Frequently Asked Questions, MEMO/10/143 (Apr. 20, 2010).
 See Manual, supra note 5, § 3.4.8.
 See Memorandum, supra note 10.
 These procedures were presented by EU Commission Vice President Kallas and endorsed at an extraordinary meeting of Transport Ministers, chaired by Spanish Minister José Blanco.
 This zone has since then split into two “enhanced zones”: a red zone in which some volcanic ash may be encountered, but where flights can still take place according to EASA; and a grey zone in which EASA recommends two approaches that allow flights under certain conditions.
 Extraordinary Meeting of Ministers of Transport (Apr. 19, 2010), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/trans/1....
 See EuroControl Volcanic Ash Cloud Timeline - April Events, EUROCONTROL- EUR. ORG. FOR THE SAFETY OF AIR NAVIGATION, http://www.eurocontrol.int/corporate/public/standard_page/volcanic_ash_c... (last visited June 30, 2010) (noting that 27,284 flights were approved, compared with the 28,578 flight expected on the same day two weeks earlier).
 See Note d’information de M. Kallas [Information Note to the Commission], Conséquences du nuages de cendres générée par l’éruption volcanique survenue en Islande sur le trafic aérien [The Impact of the Volcanic Ash Cloud Crisis on the Air Transport Industry], SEC(2010) 533, ¶ 26 (Apr. 27, 2010) [hereinafter Information Note] (noting that despite the exceptional circumstances, the EU Commission considered that the Regulation on Air Passengers Rights (EC Regulation 261/2004) remained fully applicable).
 See Memorandum, supra note 10 (explaining that besides air carriers, other transportation providers or those providing transportation services have incurred damages). For example, airports have been severely hit, as well as ground handling services and tour operators. Under EU law, tour operators are required to provide repatriation of stranded passengers. They are also obliged to refund or offer alternative arrangements to customers who have not started their journey because of the European airspace’s closure.
 Directive 2008/101 of the European Parliament and of the Council of 19 November 2008 Amending Directive 2003/87/EC so as to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading Within the Community, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 32008L0101:EN:NOT.
 The advice from the ECDC indicated that the amount of ash likely to come to ground in the aftermath of the eruption, as well as impact on health, was minimal, if any.
 The Commission asked EFSA to provide by April 22, 2010 scientific assistance, based on the chemical composition of volcanic ash, on the possible health risks via food, including drinking water and feed, in case of a significant ash fall. See Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 Laying Down the General Principles and Requirements of Food Law, Establishing the European Food Safety Authority and Laying Down Procedures in Matters of Food Safety, art. 31, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:031:0001....
 Air Traffic Management (ATM) encompasses the functions required to ensure safe and efficient movement of aircraft during all phases of operations (Air Traffic Services (ATS)), Airspace Management (ASM) and Air Traffic Flow Management (ATFM).
 Chicago Convention on International Civil Aviation, Dec. 7, 1944.
 Efforts to shape an EU airspace date back to 1996 when the European Commission published a White Paper on Air Traffic Management (“Freeing Europe’s Airspace”) and were followed by the 1997 initiative of EuroControl members to open up membership to the European Community.
 See Regulation 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the Single European Sky, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0549:E... (providing that the SES I consists of a Framework Regulation plus three technical regulations on the provision of air navigation services, organization and use of the airspace, and the interoperability of the European air traffic management network).
 Regulation 1070/2009 of the European Parliament and of the Council of 21 October 2009 amending Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004, and (EC) No 552/2004 in order to improve the performance and sustainability of the European aviation system, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:300:0034....
 The European Air Safety Agency provides expert advice to the EU on drafting new legislation. In particular, it is in charge of the implementation and monitoring of safety rules, including inspections in the Member States as well as of the approval of organizations involved in the design, manufacture, and maintenance of aeronautical products.
 See Information Note, supra note 16, ¶ 44 (noting that, in accordance with Article 8 of the Framework Regulation, the European Commission has issued a mandate to the EuroControl Agency for support in the establishment of FABs).
 Id. ¶ 60.
On January 12, 2010, a massive earthquake struck Haiti, essentially destroying the Haitian government infrastructure. According to remarks by Rene Magloire, former Minister of Justice and Special Advisor to the President and Ministry of Justice, the presidential palace, the ministry of justice building, and the legislative palace were destroyed. Police stations and prisons were damaged, allowing thousands of detainees and prisoners to escape. More than 200 thousand died, more than 300 thousand were injured, more than 450 thousand became refugees, more than 400 thousand homes were destroyed, more than 120 thousand homes damaged, and more than a million people were left without shelter. For five years Magloire and other justice officials had been working on re-establishing the Haitian judicial system and the rule of law.
Earthquakes, tsunamis, and climate disruption have focused international attention on environmental disasters, natural and anthropogenic, and the ability of the global community to respond adequately and immediately. This Insight surveys the structures for consensual relief efforts by states and the United Nations, accepted international norms for humanitarian intervention in environmental disasters, and how these norms might be modified by international recognition of the responsibility to protect.
Consensual Relief Efforts
As early as 1991, the United Nations Environmental Program ("UNEP"), in response to mounting disquietude over environmental security, established the United Nations Center for Urgent Environmental Assistance ("UNCUEA") to assess and respond to man-made environmental emergencies in cooperation with other United Nations agencies. To address acute environmental emergencies specifically, UNEP has now coordinated with the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to create the Joint UNEP/OCHA Environment Unit (JEU). A month after the earthquake in Haiti, John Holmes, the head of OCHA, wrote a confidential email to his top UN relief agency coordinators highly critical of the UN relief efforts and weak implementation of its humanitarian "cluster strategy" for delivering relief in twelve sectors of need, including water, health care, and shelter. He emphasized that "with the rainy season looming, these unmet needs are taking on additional urgency, not least from the health and protections points of view, and given the potential consequences in terms of both politics and security of large demonstrations in some sensitive places." He stated that there was an urgent need for better coordination "(1) to ensure close coordination with the efforts of national authorities; (2) to channel the contributions of the private sector; and (3) to make maximum use of the logistical support and other assistance provided by the military."
In a natural disaster like that in Haiti, there are significant logistical problems in coordination of UN and multilateral relief efforts, even with a totally cooperative and consenting state. Legal problems are less significant with a consenting state, as there is no need to justify relief efforts as lawful "intervention." Providing relief assistance in an uncooperative or failed state, however, may present legal problems. Even the Security Council is subject to the Article 2(7) prohibition on intervention in states’ domestic jurisdiction when it recommends relief assistance under Chapter VI. If the state in which the environmental problem originates is uncooperative, the Security Council, instead of resorting to Chapter VII, might choose to issue precautionary and ameliorative recommendations for emergency response action applicable only in the territory of consenting states, but which could nevertheless be interpreted by the state of origin as "intervention" in its domestic jurisdiction. For example, routine monitoring or exchange of information on the transboundary effects of an environmental disaster, taken pursuant to a Security Council recommendation that there be such collection and exchange of information, might be objectionable to the state of origin. In this regard, it is relevant to note that Russian counter-intelligence agents in 1995 accused a "[w]estern ecological organization of divulging military secrets and . . . suggested that foreign environmental groups are fronts for espionage."
Environmental disasters with transboundary effects, loss of a vital global resource, or actions in violation of international environmental law may no longer be regarded as matters of "domestic" jurisdiction. An interpretation of "domestic" jurisdiction that excludes environmental disasters with international ramifications is also consistent with the current widespread recognition that "domestic" jurisdiction does not encompass large scale deprivation of basic human rights. Otherwise even the most well intended relief efforts by states or the UN might be characterized as unlawful intervention in uncooperative or failed states.
Even when working with a fully cooperative government in Haiti, the head of UN relief operations has acknowledged a disturbing inadequacy of the UN to provide and coordinate voluntary relief assistance. In the first critical hours during the Haiti earthquake, or in the next environmental disaster, what government is available to consent to such efforts? Do the international community and the UN have to await consent from a state unable to respond? The Security Council may authorize action without consent if there is a "threat to peace," and recent precedents of humanitarian intervention and acknowledgment of refugee problems as a threat to peace may lend themselves to invocation of Chapter VII, but not decisively so.
The legality of unilateral and multilateral humanitarian intervention by states continues to be highly disputed, given the Charter limitation on states’ use of force as "self-defense." It would be difficult for a state to justify military intervention in a natural disaster in another state as self-defense. Similarly, "breach of peace, threat to peace, or an act of aggression" under Chapter VII for purposes of Security Council authorization of enforcement measures does not effortlessly lend itself to authorizing humanitarian intervention, much less in natural disasters.
In the absence of real or threatened military conflict, can environmental destruction be sufficient to trigger the Council’s Chapter VII powers? Is a threat to ecological security a threat to international peace and security? The Security Council has declared that non-military sources of instability in the economic, humanitarian, and ecological fields may become a threat to peace and security. Should environmental degradation threaten to lead to conflict between states or take place in an ongoing military conflict, there would be no need to resort to a separate notion of ecological security or humanitarian intervention in order to trigger authority in the Security Council under Chapter VII. Absent real or potential military conflict, however, there are many conceivable scenarios in which the state of origin of an environmental disaster might be unable or unwilling to cooperate with the Security Council or other states (e.g., the Soviet Union during Chernobyl and Myammar after the tsunami), thereby exacerbating the transboundary effects of an environmental disaster and jeopardizing the lives of its own populace by refusing to cooperate with the international community in remedial action.
Security Council enforcement action with respect to preservation of human rights is analogous to Security Council enforcement action to protect individuals from environmental catastrophes. For example, the humanitarian mission to Somalia, the economic sanctions and authorization of a multinational force for Haiti in 1993, the placement of relief operations in Iraqi territory for the Kurdish population, and the establishment of the international criminal tribunals for Rwanda and the former Yugoslavia are examples of humanitarian intervention by the Security Council in order to remedy gross and systematic deprivation of human rights. Although each of these precedents (with the notable exception of Haiti) can be legitimized by pointing to the background conflicts present, such a position would ignore the humanitarian justifications given in the relevant resolutions for the Security Council’s actions. Notably, the political tension created by mass migration of refugees has also been a factor in the Council’s invocation of Chapter VII. These examples indicate that the Security Council members and the global community are at least somewhat receptive to a policy-oriented, constitutive approach to interpreting the Charter even when such interpretation expands the obligations and duties of member states beyond the original intent of the Charter.
Any analogy to the Security Council’s exercise of humanitarian intervention under Chapter VII is complicated by the fact that, under international law, there has yet to be clear and unequivocal recognition of a right to a safe and healthful environment. This lack of recognition is particularly troublesome in that whatever authority the Security Council might have under Chapter VII, the scope of its activities is confined by the stated purposes of the United Nations in Article 1. Article 1 explicitly mentions human rights as one of the fundamental purposes of the United Nations. Absent a threat to military peace and security, or recognition of the concept of ecological security, legitimacy of any Security Council enforcement measures in responding to natural disasters on humanitarian grounds will be attenuated so long as there is no explicit and clear recognition of a fundamental right to a safe and healthful environment.
The Responsibility to Protect
The gap between this periodic need for the international community to intervene in a state’s management of environmental disasters and the prohibition on intervention could be filled by an extension of a relatively new norm to this situation. On September 16, 2005, the United Nations General Assembly adopted by consensus a resolution recognizing the "responsibility to protect". The core of the responsibility to protect is that "[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity." The international community has the responsibility to use diplomatic, humanitarian and other peaceful means, and if those fail, may take "collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis" when "national authorities are manifestly failing to protect their populations" from the four crimes.
A broader formulation of the responsibility to protect was included in the 2001 report, The Responsibility to Protect, from the International Commission on Intervention and State Sovereignty (ICISS Report). It concludes that "where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect." The elements of the responsibility include the responsibility to prevent, react, and rebuild, with the single most important priority being the responsibility to prevent. The ICISS Report also advises that military intervention is appropriate when there is "serious and irreparable harm occurring to human beings, or likely to occur," involving large scale loss of life (whether from "deliberate state action, or state neglect or inability to act, or a failed state situation") or large scale ethnic cleansing. While the ICISS Report favors intervention through the UN Security Council and General Assembly, it acknowledges the possibility of state intervention in a "conscience-shocking" situation if the UN fails to address the situation in a timely manner.
However, UN officials, including the Secretary-General, have been quick to deny that the responsibility to protect applies to environmental crises.
From State Security to Human Security
Would the responsibility to protect, if accepted as a norm of international law, alter the calculation by requiring the Security Council or states to act? Ultimately, the difference between Chapter VII precedents, the UN formulation of the responsibility to protect, and ICISS Report may be one of affirmative obligation versus permissive authority, and timing. A natural disaster, which results in massive loss of life and population displacement, can be characterized as a "threat to peace" such that the Security Council may authorize enforcement action. The Security Council would not have an affirmative responsibility to protect, unless the situation deteriorates into the commission of war crimes, genocide, ethnic cleansing, or crimes against humanity. Under the ICISS formulation, states and the UN would have an affirmative obligation to respond whenever a population is suffering serious harm, and the UN would have an affirmative obligation to do so with military force when there is a large scale loss of life, "actual or apprehended which is the product of deliberate state action, neglect or inability to act, or a failed state situation . . . ." Haiti, seeking to "rise from the ashes," in the words of King Henri Christophe, the leader of the 1804 Haitian revolution, may provide a litmus test for which approach, prevention or remediation, is to be the international practice.
Linda A. Malone, an ASIL member, is the Marshall-Wythe Professor of Law and Director of the Human Security Law Program at William and Mary Law School.
 Rene Magloire and Louis Aucoin, Remarks at the William and Mary Law School Sponsored by the Program for Comparative Legal Studies and Post-Conflict Justice and the United States Institute of Peace (Feb. 15, 2010).
 United Nations Office for the Coordination of Humanitarian Affairs, What is the Joint Environment Unit?, http://ochaonline.un.org/ToolsServices/EmergencyRelief/EnvironmentalEmergenciesand
theJEU/WhatistheJointEnvironmentUnit/tabid/1459/language/en-US/Default.aspx; see also Megan M. Grew, The Joint UNEP/OCHA Environmental Unit: A Global Environmental Response Team, 25 SUFFOLK TRANSNAT’L L. REV. 687(2002).
 The text of the email is available at http://turtlebay.foreignpolicy.com/posts/2010/02/17/top_un_
 U.N. Charter Article 2(7) provides:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
U.N. Charter art. 2, para. 7.
 Lee Hockstader, Ecologists Accused of Espionage, WASH. POST, Oct. 22, 1995, at A26.
 See generally Linda A. Malone, ‘Green Helmets’: The United Nations Security Council’s Authority to Respond to Environmental Disaster, 17 MICH. J. INT’L L. 515 (1996).
 S.C. Res. 794, ¶ 1, U.N. Doc. S/RES/794 (1992).
 S.C. Res. 841, ¶ 1, U.N. Doc. S/RES/841 (1993).
 S.C. Res. 688, ¶ 2, U.N. Doc. S/RES/688 (1991), reprinted in 30 I.L.M. 858 (1991).
 S.C. Res. 995, ¶ 2, U.N. Doc. S/RES/995 (1994).
 S.C. Res. 827, ¶¶ 1-2, U.N. Doc. S/RES/827 (1993).
 See W. PAUL GORMLEY, HUMAN RIGHTS AND THE ENVIRONMENT: THE NEED FOR INTERNATIONAL COOPERATION (1976); ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW (1991); Gudmundur Alfredson & Alexander Ovsiouk, Human Rights and the Environment, 60 NORD. J. INT'L L. 19 (1991); Noralee Gibson, The Right to a Clean Environment, 54 SASK. L. REV. 5 (1990); W. Paul Gormley, The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms, 3 GEO. INT'L ENVTL. L. REV. 85 (1990); W. Paul Gormley, The Right to a Safe and Decent Environment, 28 INDIAN J. INT'L L. 1 (1988); W. Paul Gormley, The Right of Individuals to be Guaranteed a Pure, Clean and Decent Environment: Future Programs of the Council of Europe, I LEGAL ISSUES OF EUR. INTEGRATION 23 (1975); Gunther Handl, Human Rights and Protection of the Environment: A Mildly ‘Revisionist’ View, in HUMAN RIGHTS, SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT 117 (A. Cancado Trindade ed., 1992); Iveta Hodkova, Is There a Right to a Healthy Environment in the International Legal Order?, 7 CONN. J. INT'L L. 65 (1991); R.S. Pathak, The Human Rights System As a Conceptual Framework for Environmental Law, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS 205 (Edith B. Weiss ed., 1992); Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 STAN. J. INT'L L. 103 (1991); Dinah Shelton, The Right to Environment, in THE FUTURE OF HUMAN RIGHTS PROTECTION IN A CHANGING WORLD: FIFTY YEARS SINCE THE FOUR FREEDOMS ADDRESS, ESSAYS IN HONOR OF TORKEL OPSAHL 197 (Asbjorn Eide & Jan Helgesen eds., 1991); Heinhard Steiger et al., The Fundamental Right to a Decent Environment, in TRENDS IN ENVIRONMENTAL POLICY AND LAW 1 (Michael Bothe ed., 1980); Melissa Thorme, Establishing Environment as a Human Right, 19 DENY. J. INT'L L. & POL'Y 301(1991); Henn-Juri Uibopuu, The Internationally Guaranteed Right of an Individual to a Clean Environment, in HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND ACTION 151 (Richard P. Claude & Bums H. Weston eds., 1989); David A. Wirth, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L. REV. 599 (1995); Jennifer A. Downs, Note, A Healthy and Ecologically Balanced Environment: An Argument for a Third Generation Right, 3 DUKE J. COMP. & INT'L L. 351 (1993); James T. McClymonds, Note, The Human Right to a Healthy Environment: An International Legal Perspective, 37 N.Y.L. SCH. L. REV. 583 (1992); cf. World Charter for Nature,G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N. Doc. A/37/51 (1982); 22 ILM 455 (1983), available at http://www.un.org/documents/ga/res/37/a37r007.htm; World Charter for Nature Addendum, U.N. GAOR, 37th Sess., Agenda Item 21, U.N. Doc. A/37/L.4/Add.l (1982); see generally Andrzej Makarewicz, La protection internationale du droit i l'environnement, in ENVIRONNEMENT ET DROITS DE L'HOMME 77, 79-82 (Pascale Kromarek ed., 1987).
 U.N. Charter art. 1.
 G.A. Res. A/RES/60/1, ¶ 138, U.N. Doc. A/RES/60/1 (Oct. 24, 2005); and S.C. Res. 1674, ¶ 4, U.N. Doc. S/RES/1674 (Apr. 28, 2006) (the Security Council reaffirmed the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect).
 See G.A. Res. A/RES/60/1, supra note 14.
 Id. ¶ 138.
 As this article was going to press, one of the strongest earthquakes ever took place in Chile and Japan and Hawaii braced for a tsunami which fortunately did not materialize. Although much stronger than the Haitian earthquake, the loss of life and damage seemed much less severe, highlighting the correlation between poverty, inadequate infrastructures, and unsustainable population concentrations in attributing to natural disasters. Poverty Predicts Quake Damage Better than Richter Scale, AOL NEWS (Feb. 27, 2010), http://www.aolnews.com/world/article/poverty-predicts-quake-damage-bette...|htmlws-main-w|dl1|link3|http%3A%2F%2Fwww.aolnews.com%2Fworld%2Farticle%2Fpoverty-predicts-quake-damage-better....
A new swine influenza virus is causing outbreaks in humans in Mexico, the United States, and Canada, and the virus has possibly spread to other countries. This outbreak has alarmed public health officials because of its epidemiological characteristics, which indicate that the virus may be able to cause a pandemic. Efforts to prepare for pandemic influenza have been underway following the emergence of a dangerous strain of avian influenza in 2004. The outbreak is testing these preparations, including new rules of international law—the International Health Regulations 2005 (IHR 2005) adopted by the World Health Organization (WHO). This Insight provides information on the outbreak and discusses the IHR 2005’s role in the responses to it.
Information on the Swine Flu Outbreak
According to WHO, swine flu “is a highly contagious acute respiratory disease of pigs, caused by one of several swine influenza A viruses.” Although humans have contracted swine flu from pigs in the past, the strain causing the recent outbreak—swine influenza A (H1N1)—is novel. This strain causes concern because it “is substantially different from human influenza A (H1N1) viruses, [meaning] that a large proportion of the population might be susceptible to infection, and that the seasonal influenza vaccine H1N1 strain might not provide protection.”
This strain of swine influenza has been identified in confirmed cases in 19 of Mexico’s 32 states (18 total confirmed cases, as of April 26, 2009), the United States (20 confirmed cases in five states, as of April 26, 2009), and Canada (6 confirmed cases in 2 Canadian provinces, as of April 26, 2009).
Potential cases in Mexico may, however, be higher because Mexico reported, as of April 23, 2009, over 800 cases of influenza-like illness with 59 deaths. By April 26, 2009, the press reported that over 1,300 cases and 81 deaths had occurred in Mexico. The outbreak’s severity caused the Mexican government to exercise emergency powers, under which it has banned public gatherings and closed schools to slow the virus’ spread. The World Bank has already extended $205 million in loans to help Mexico deal with the outbreak.
News reports on April 26, 2009, also indicated that possible cases had been identified in Australia, France, Hong Kong, Israel, New Zealand, and Spain. The actual and possible appearance of this new virus in multiple locations in Mexico, the United States, and Canada and in North America, Europe, and Asia indicated that geographical containment of the virus is not possible.
More worries have arisen because the virus in Mexico is linked with mortality in young and otherwise healthy adults, which is not the population cohort that typically experiences death when exposed to seasonal influenza viruses. The susceptibility of young, healthy adults has brought about comparisons to the pandemic of 1918-19, that killed millions of healthy, young adults around the world. Fortunately, the swine flu strain is, at the moment, sensitive to the anti-viral drugs oseltamivir and zanamivir.
The cases in the United States have, to date, only produced mild illness, one hospitalization, and no deaths. Nevertheless, the geographical pattern of morbidity in the United States, combined with the outbreak in Mexico and the virus’ apparent global spread, prompted the United States to declare a public health emergency on April 26, 2009.
The different impact of the same virus in Mexico and in the United States is only one of many unanswered questions public health officials and scientists have about this new virus. In the coming days, WHO will lead a global epidemiological and scientific effort to answer questions this new virus and outbreak raise.
The Swine Flu Outbreak and the International Health Regulations 2005
In response to the outbreak, WHO has applied the IHR 2005, which the World Health Assembly adopted in 2005 and which entered into force in 2007. The IHR 2005 was the product of a ten-year effort to revise the international rules on infectious diseases and represents a radical transformation of these rules in an attempt to build a stronger framework for cooperation against disease threats. The swine flu outbreak constitutes a major test on how well WHO and its member states apply the IHR 2005 to a dangerous outbreak.
Declaration of a Public Health Emergency of International Concern
On April 25, 2009, the WHO Director-General convened an Emergency Committee and, based on its advice, declared that the outbreak constituted a “public health emergency of international concern” under the IHR 2005. The swine flu outbreak marks the first time under the IHR 2005 that the Director-General convened the Emergency Committee and determined that a public health emergency of international concern exists.
The IHR 2005 authorizes the WHO Director-General to make such a declaration (Article 12(1)), and the IHR 2005 defines a public health emergency of international concern as “an extraordinary event which is determined . . . (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response” (Article 1). At the request of the Director-General, the Emergency Committee provides its views on whether an event constitutes a public health emergency of international concern (Article 48(1)(a)).
The Emergency Committee did not advise the WHO Director-General to raise the pandemic alert level from Phase 3 to Phase 4. As part of preparing for pandemic influenza, WHO developed phases for pandemic influenza (see box), and the Director-General can change the alert level based on the threat from an influenza outbreak. The Emergency Committee may recommend moving the pandemic alert level to Phase 4 as early as April 28, 2009, depending on its review of new information.
WHO’S PANDEMIC PHASES
|1||No new influenza virus subtypes have been detected in humans. An influenza virus subtype that has caused human infection may be present in animals. If present in animals, the risk of human infection or disease is considered to be low.|
|2||No new influenza virus subtypes have been detected in humans. However, a circulating animal influenza virus subtype poses a substantial risk of human disease.|
|Pandemic alert phase|
|3||Human infection(s) with a new subtype but no human-to-human spread, or at most rare instances of spread to a close contact.|
|4||Small cluster(s) with limited human-to-human transmission but spread is highly localized, suggesting that the virus is not well adapted to humans.|
|5||Larger cluster(s) but human-to-human spread still localized, suggesting that the virus is becoming increasingly better adapted to humans but may not yet be fully transmissible (substantial pandemic risk).|
|6||Pandemic: increased and sustained transmission in general population.|
Source: Adapted from U.S. Centers for Disease Control and Prevention, Stages of a Pandemic, at http://www.cdc.gov/flu/pandemic/phases.htm.
Temporary Recommendations for a Public Health Emergency of International Concern
Under the IHR 2005, if the WHO Director-General declares a public health emergency of international concern, then the Director-General must issue temporary recommendations (Article 15(1)). The nature of the temporary recommendations depends on the threat, and the IHR 2005 provides possible recommendatory actions (Article 18). Temporary recommendations are not binding under the IHR 2005.
On April 25, 2009, the WHO Director-General issued the temporary recommendation that “all countries should intensify surveillance for unusual outbreaks of influenza-like illness and severe pneumonia.” The Director-General did not recommend trade or travel interventions with respect to countries affected by the outbreak. However, some countries have adopted such measures, including issuing travel notices warning against travel to Mexico (e.g., Hong Kong), screening air passengers arriving from affected countries (e.g., Japan), and banning pork exports from Mexico and affected states in the United States (e.g., Russia).
The IHR 2005 do not preclude States Parties from implementing measures that achieve a greater level of health protection than WHO temporary recommendations, provided that such measures are (1) otherwise consistent with the Regulations, and (2) not more restrictive of international trade and travel, and not more invasive or intrusive to persons, than reasonably available alternatives that would achieve the appropriate level of health protection (Article 43(1)) (see analysis below on trade and travel restrictions).
Reporting Cases of Human Influenza Caused by a New Subtype
The IHR 2005 mandates that any case involving human influenza caused by a new subtype must be notified to WHO (Article 6(1) and Annex 2). Thus, States Parties affected by the new swine flu virus must notify WHO of such cases. As of April 25, 2009, WHO has received information on cases from Mexico and the United States. If the virus is confirmed in cases in other WHO member states, those countries too will be under a legal obligation to report them to WHO.
Such reporting is critical for WHO to analyze the threat, and, as has happened in the past, sometimes countries fail to report information (e.g., China’s attempt to cover up SARS in 2003). Although questions have been raised about Mexico’s reporting of cases, the WHO Director-General has praised Mexico and the United States for their transparency and cooperation in the outbreak investigation.
Rules on Trade Restrictions
Although the WHO Director-General has not issued temporary recommendation advising restrictions on trade, the Director-General can do so if the scientific evidence, scientific principles, a risk assessment, and advice of the Emergency Committee make such recommendations appropriate (Articles 17-18). Any such measures must be no more “restrictive of international traffic and trade . . . than reasonably available alternatives that would achieve the appropriate level of health protection” (Article 17(d)). Given that health officials have found no evidence that pork products transmit swine flu, the Director-General is unlikely to recommend trade restrictions against such products.
The IHR 2005 applies a test similar to those in the World Trade Organization (WTO), such as in the General Agreement on Tariffs and Trade (Article XX(b)) and the Agreement on the Application of Sanitary and Phytosanitary Measures (e.g., Articles 2,2. 2.3 and 5.6). Russia’s reported ban on pork exports from Mexico and the United States possibly violates the IHR 2005, and might also violate WTO rules, if Russia were a WTO member. Russia’s ban is not based on scientific evidence, scientific principles, or a risk assessment because pork products do not transmit swine flu.
Rules on Travel Restrictions
Although the WHO Director-General has not issued temporary recommendations that impact travel, the outbreak’s course and the issuance of travel warnings by countries may raise the necessity to think about such measures. The IHR 2005 permits the Director-General to issue temporary recommendations that affect travel (e.g., travel warnings) or individual travelers (e.g., entry screening or medical examinations) (Articles 17-18), and States Parties may also apply measures that affect travel, even if not recommended by the Director-General (Articles 23 and 43(1)). However, such measures must be no more restrictive of travel, nor more invasive and intrusive to persons, than reasonably available alternatives that would achieve the appropriate level of health protection (e.g., Articles 17(d), Article 23(1), 31(2), and 43(1)).
Rules on Public Health Measures and Human Rights
With human-to-human transmission established, the outbreak has raised the potential need for interventions, such as compulsory isolation, quarantine, and treatment, which infringe on civil and political rights. The IHR 2005 and international human rights law recognize the legitimacy of such interventions, provided that they meet specific conditions and are applied in keeping with certain principles.
The IHR 2005 mandates that States Parties “shall treat travelers with respect for their dignity, human rights and fundamental freedoms” (Article 32), meaning that any intervention that infringes on civil and political rights must
- Be prescribed by law;
- Be applied in a non-discriminatory manner;
- Relate to a compelling public interest in the form of a significant infectious disease risk; and
Be necessary to achieve the protection of the public, meaning that the measure must be:
- Based on scientific and public health information and principles;
- Proportional in its impact on individual rights to the infectious disease threat posed; and
- The least restrictive or intrusive measure possible to achieve protection against infectious disease risk.
Human rights concerns may also arise under the right to health, particularly with respect to non-discriminatory access of infected individuals to health care services (e.g., hospitals) and anti-viral drugs (e.g., Tamiflu). Countries affected by swine flu that recognize the right to health need to ensure that potentially scarce health care services and anti-viral treatments are not allocated in ways that discriminate against the poor and most vulnerable members of society.
The swine flu crisis emerged rapidly, and dramatic developments may arise in the coming days. The outbreak’s consequences could be far-reaching. With the global economic crisis stressing health systems in middle- and low-income countries, their ability to deal with a swine flu epidemic is suboptimal. The outbreak could also affect the deadlocked negotiations over sharing avian influenza virus samples because it demonstrates how critical virus sharing with WHO is for global influenza surveillance and response. Already clear is the IHR 2005’s importance to international disease threats such as the swine flu, and perhaps this crisis will catalyze needed efforts, even in times of global economic crisis, to strengthen compliance with and implementation of the IHR 2005.
David P. Fidler, an ASIL member, is the James Louis Calamaras Professor of Law and Director of the Center on American and Global Security at the Indiana University Maurer School of Law, Bloomington (firstname.lastname@example.org).
 World Health Organization [WHO], International Health Regulations 2005, (2nd ed. 2008), at http://whqlibdoc.who.int/publications/2008/9789241580410_eng.pdf [hereinafter IHR 2005].
 WHO, Swine Flu Frequently Asked Questions, Apr. 26, 2009, at http://www.who.int/csr/swine_flu/swine_flu_faq_26april.pdf.
 U.S. Centers for Disease Control and Prevention, Swine Influenza A (H5N1) Infection in Two Children - Southern California, Mar.-Apr. 2009, at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5815a5.htm.
 WHO, Influenza-Like Illnesses in the United States and Mexico—Update 2, Apr. 26, 2009, at http://www.who.int/csr/don/2009_04_26/en/index.html.
 U.S. Centers for Disease Control and Prevention, Human Swine Flu Investigation, Apr. 26, 2009, at http://www.cdc.gov/swineflu/investigation.htm#press.
 WHO, Influenza-Like Illnesses in the United States and Mexico, Apr. 24, 2009, at http://www.who.int/csr/don/2009_04_24/en/index.html.
 K. Bradshear and J. Healy, As Nations Try to Contain Flu, N.Y. Cases are Confirmed, N.Y. Times, Apr. 26, 2009, available at http://www.nytimes.com/2009/04/27/world/27flu.html?hp.
 S. Boseley, Mexico Granted $205 Million Swine Flu Loan from World Bank, The Guardian, Apr. 27, 2009, available at http://www.guardian.co.uk/world/2009/apr/27/mexico-loan-imf-swine-flu.
 Bradshear and Healy, supra note 9; BBC News, supra note 7.
 M. Chan, Director-General of WHO, Opening Statement for a Global Telephone News Conference, Apr. 25, 2009, at http://www.who.int/csr/disease/swineflu/swineflu_presstranscript_2009_04_25.pdf.
 H. Branswell, Swine Flu an “Emergency of International Concern,” WHO Says, Global & Mail, Apr. 25, 2009, at http://www.theglobeandmail.com/servlet/story/RTGAM.
 U.S. Centers for Disease Control and Prevention, supra note 6.
 K. Bradshear and J. Healy, U.S. Declares Public Health Emergency Over Swine Flu, N.Y. Times, Apr. 26, 2009, available at http://www.nytimes.com/2009/04/27/world/27flu.html?hp.
 See, e.g., D. G. McNeil, Jr., Flu Outbreak Raises Set of Questions, N.Y. Times, Apr. 26, 2009, available at http://www.nytimes.com/2009/04/27/health/27questions.html?ref=asia.
 Under Article 21(a) of the WHO Constitution, the World Health Assembly has the authority to adopt regulations “designed to prevent the international spread of disease.” Under Article 22 of the WHO Constitution, any such regulations enter into force for all WHO member states that have not opted out of such regulations within a specified period of time. No WHO member states opted out of the IHR 2005.
 For a comprehensive overview of the IHR 2005, see David P. Fidler, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int'l L. 458 (2005).
 The swine flu outbreak is not the first major test of the IHR 2005 because WHO attempted, without success, to apply the IHR 2005 to Indonesia’s refusal to share samples of avian influenza A (H5N1) with WHO. On this controversy and the attempted application of the IHR 2005, see David P. Fidler, Influenza Virus Samples, International Law, and Global Health Diplomacy, 14(1) Emerging Infectious Diseases 88 (2008). However, although the controversy concerning virus sharing continued after the IHR 2005 entered into force, the problem began before the IHR 2005 was legally binding on WHO member states. The swine flu outbreak is, therefore, the first test of the IHR 2005 from a disease threat emerging after the IHR 2005 entered into force.
 WHO, Statement by the WHO Director-General on Swine Influenza, Apr. 25, 2009, at http://www.who.int/mediacentre/news/statements
/2009/h1n1_20090425/en/index.html [hereinafter WHO Statement].
 The WHO Director-General selects the members of the Emergency Committee from the IHR Roster of Experts created under Article 47 of the IHR 2005.
 WHO Statement, supra note 21. This decision drew criticism from some experts. See Branswell, supra note 13 (quoting leading public health expert Michael Osterholm as arguing that the decision not to move to Phase 4 “surely flies in the face of all the science that we have”).
 WHO Statement, supra note 21.
 K. Bradhsear, Hong Kong, Minding SARS, Announces Tough Measures in Response to Swine Flu, N.Y. Times, Apr. 26, 2009, available at http://www.nytimes.com/2009/04/27/world/asia/27kong.html.
 Hot Arrivals from Mexico Face Swine Flu Scrutiny, Japan Times, Apr. 26, 2009, available at http://search.japantimes.co.jp/cgi-bin/nn20090426a1.html.
 BBC News, supra note 7; F. Jordans, Swine Flu Fears Prompt Quarantine Plans, Pork Bans, Associated Press, Apr. 26, 2009, available at http://news.yahoo.com/s/ap/20090426/ap_on_re_au_an/swine_flu_world.
 See, e.g., M. Stevenson, Mexico Swine Flu Deaths Spur Global Epidemic Fears, Associated Press, Apr. 24, 2009, available at http://news.yahoo.com/s/ap/20090424/ap_on_he_me/med_swine_flu (“Mexico's government had maintained until late Thursday [April 23, 2009] that there was nothing unusual about the flu cases, although this year's flu season had been worse and longer than past years. The sudden turnaround by public health officials angered many Mexicans”).
 Chan, supra note 12.
 Jordans, supra note 27 (“Governments including China, Russia and Taiwan began planning to put anyone with symptoms of the deadly virus under quarantine”).
 These disciplines represent the application of the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1984/4 (Sep. 28, 1984), to the context of infectious disease control.
 See World Bank, Averting a Human Crisis During the Global Downturn - Policy Options from the World Bank’s Human Development Network, Apr. 24, 2009, at http://siteresources.worldbank.org/NEWS/Resources/AvertingTheHumanCrisis.pdf.
The Bali Roadmap marks a milestone in the process of international consensus building, setting forth a multilateral legal framework to address climate change. Delegates at the UN Climate Change Conference in Bali (Dec. 3-15 2007) launched a two-year process with a comprehensive agenda and 2009 deadline to complete negotiations for a post-2012 agreement. The Bali Conference included both the thirteenth annual meeting of the Conference of the Parties (COP 13) to the 1992 UN Framework Convention on Climate Change (UNFCCC) and third Conference of the Parties serving as the Meeting of Parties to the 1997 Kyoto Protocol (COP/MOP 3).
The building blocks of the Bali Roadmap include: mitigating climate change by cutting emissions; facilitating clean technology transfer; adapting to such consequences of climate change as floods and droughts; and financing adaptation and mitigation measures. Bali delegates additionally agreed to support activities such as funding developing countries to prevent deforestation. This process will include demonstration initiatives involving indigenous communities over the next two years -- culminating in negotiations on forestry in relation to a post-2012 regime. Bali delegates agreed to establish a mechanism to fund tropical countries to preserve their rainforests and launched an Adaptation Fund.
The Working Group on Long-Term Cooperative Action
COP 13 established an Ad Hoc Working Group on Long-Term Cooperative Action that shall hold its first meeting by April 2008 and complete its work in 2009. The agenda will include enhanced national/international action on (1) technology development and transfer, (2) adaptation, (3) provision of financial resources and investment, and (4) mitigation of climate change by cutting emissions.
Technology development and transfer will be facilitated by developed countries to scale up the use of clean technology in the developing world. Countries can negotiate a technology agreement as an amendment to the UNFCCC or as a freestanding clean technology transfer treaty. Funding will facilitate the transfer of wind turbines, solar panels, drip irrigation, and a wide range of other crucial clean technologies. Bali delegates agreed to establish an interim funding program under the Global Environment Facility (GEF) until substantial technology funding can be made available through the comprehensive agreement likely to be reached at COP 15 in Copenhagen in 2009. Countries agreed to launch an investment program to transfer mitigation/adaptation technologies to developing countries. The Expert Group on Technology Transfer (EGTT) will be extended for another five years and will report to both the Subsidiary Body for Scientific and Technological Advice (SBSTA) and the Subsidiary Body for Implementation (SBI). The EGTT will develop performance indicators to monitor and evaluate the implementation/effectiveness of technology transfer. The EGTT will make recommendations to the subsidiary bodies on such issues as subsidizing licenses for clean technology transfer and increased investment to facilitate this process. A strategic program under the GEF will finance technology transfer, which will be augmented by the consideration of additional funding sources.
Adaptation will involve international cooperation to support urgent needs of particularly vulnerable developing countries. A significant breakthrough at the Bali Conference came with agreement that the Adaptation Fund Board would operate with the guidance of the COP/MOP. The GEF will provide an interim secretariat role. Bali delegates agreed to support urgent implementation of measures to protect poor countries from negative consequences of climate change and to consider ways to lower the chances and/or damage from climate change impacts.
Financing will be adequate, predictable and sustainable. Dialogue nearly stalled over who will fund clean technology transfer and how developed and developing countries should share the responsibility to mitigate climate change by reducing emissions. After noting that the US was primarily responsible for blocking progress at Bali, Nobel Peace Prize Laureate Al Gore urged negotiators to draft an open-ended agreement the details of which could be determined after the 2008 US elections.
Mitigation by developed countries
Mitigation by developed countries will involve quantified emission limitations and reductions, taking into account differences in national circumstances. Meaningful action that establishes collective standards with individual country implementation can address global climate change. Resolving equity and efficiency aspects of tradable permits and clean technology transfer can achieve sustainable development. A post-2012 agreement can combine (1) fixed, binding emission reduction targets for developed countries, (2) binding dynamic targets for the wealthier developing countries and (3) voluntary targets for the least developed countries.
Globally, the energy sector contributes roughly 80 percent of greenhouse gas emissions. The World Bank estimates a 60 percent increase in global energy production carbon emissions by 2030. Environmentally clean technology can be supported through the enactment of governmental subsidies for renewable energy and the removal of subsidies for energy generation that poses high risks to human health and the environment.
Cap-and-trade programs can be established, linked, and sustained globally in an equitable and transparent manner. The second period of the European Union Emissions Trading Scheme will occur from 2008 to 2012, coinciding with the Kyoto Protocol's first commitment period. The EU emissions trading program is linked to the Kyoto Protocol's Joint Implementation and Clean Development Mechanism. Companies can buy emissions reduction credits from CDM/JI projects to offset their emissions. Cap-and-trade programs allow players to choose the most cost effective approach, comparing investing in clean technology, increasing energy efficiency, or buying credits from a source that has lower emission reduction costs. The global cost of climate change mitigation can be minimized when trading facilitates emissions reductions where they are least expensive to implement. The key to a successful trading program is to determine initial emissions accurately and allocate permits wisely.
Mitigation by developing countries
Within a sustainable development framework, mitigation by developing countries will involve nationally appropriate mitigation actions that are measurable, reportable and verifiable. Such mitigation will be supported by developed country clean technology transfer, financing and capacity-building. Bali participants did not settle the mitigation debate until the final hours of the conference at the COP plenary session on Saturday. Senior officials negotiated past the scheduled close of the Bali Conference at 6:00 pm on Friday, December 14. At 10:30 am Saturday morning, UN Secretary General Ban Ki-moon and Indonesian President Susilo Bambang Yudhoyono returned to the conference, urging delegates to reach a consensus. Ban Ki-moon stated that, "[t]he hour is late. It is time to make a decision." He appealed to delegates not to "risk everything you have achieved so far."
India's proposal on behalf of the G-77+China addressed the differences in national circumstances amongst developing countries -- recognizing that such countries as China and India would be willing to make reduction pledges. While the developing countries did not agree to the binding reductions requested by the US, the developing world offered to compromise. Developing countries whose national circumstances enabled emissions reductions would agree to work out the details of reductions over the next two years. Existing language read that rich countries should take on commitments or actions to cut their emissions. Kyoto style commitments would bind states to specific targets.
The Negotiation Process
The US wanted to retain the word "actions" as a way to continue voluntary rather than binding carbon emissions reductions. The text called upon developing countries to take measurable, reportable, and verifiable action to reduce their emissions, a significantly heavier obligation than previous measures relating to developing countries. Developing countries agreed to these obligations so long as developed nations funded and facilitated the process of clean technology transfer in a manner that would be measurable, reportable and verifiable. The EU and developing countries were reaching consensus when the US intervened with the assertion that developing countries had not taken on sufficient commitments for the US to accept the balance of obligations. The crowded hall erupted into booing as negotiators and civil society expressed their dismay. This international outcry impacted the members of the US delegation. South Africa asked the US to reconsider. On behalf of all small island developing countries, Tuvalu asked all parties in the hall to accept the text. Each country that asked the US to alter its position received sustained applause. Since decisions at Bali were made by consensus, it looked as if the US would succeed in blocking a Bali agreement.
Anger had been building all week as the US delegation systematically derailed negotiations. The US came out with a counter-proposal that went against the spirit of both the Framework Convention and the Kyoto Protocol at 3:00 am on Friday morning, shortly after having reopened deforestation negotiations that were widely believed to have been concluded. James Connaughton, President George W. Bush's chief adviser on environmental issues had been asked why the US was not providing climate leadership. "We are leading and we will continue to lead," he said. "But leadership requires the rest of the world to fall in line and follow us." By Saturday, tensions were running high. Papua New Guinea summed up the position of the international community stating, "[w]e all came with high expectations. The world is watching us. We left a seat for every country. We asked for leadership. And there is an old saying: if you are not willing to lead, then get out of the way. And I would ask the US: we ask for your leadership, we seek your leadership. But, if for some reason you are not willing to lead, leave it to the rest of us - please, get out of the way." The room erupted into applause. US negotiators began exchanging notes then asked to speak again. Lead US negotiator Paula Dobriansky stated that, "[w]e have listened very closely to many of our colleagues here during these two weeks . . . I've especially listened to what has been said in this hall today . . . We are heartened by the firm commitments that have in fact been expressed by the developing countries . . . we will go forward and join consensus." After overwhelming isolation, the US removed its block on the final text. Bali demonstrated that civil society participation and sustained international interactions can achieve consensus on emissions reduction in line with the science. Global pressure forced the US to make a U-turn reversal of its position during all-night negotiations. Together, Bali delegates accomplished the feat of agreeing to negotiate a framework to address climate change by 2009.
The decision on long-term action under the Framework Convention was finally adopted on Saturday afternoon, when parties agreed to India's proposal on behalf of developing countries that included nationally appropriate mitigation actions by developing country parties in the context of sustainable development. If supported by technological and financial capacity building, then developing countries could agree to measurable, reportable and verifiable actions to reduce emissions. The COP/MOP and Ad Hoc Working Group (AWG) went on to finalize decisions on remaining aspects of the Bali Roadmap, concluding 24 hours past the scheduled end of the Bali Conference.
Consensus has been reached to adopt deep reductions to greenhouse gas emissions in line with the IPCC's initial target of 25 to 40 percent reductions below 1990 levels by the year 2020 and a peak and decline within the next 10-15 years. This scientific time frame is not flexible - representing the total global reductions required to avert the most catastrophic effects of climate change. The EU and US spent most of the conference in a heated debate over whether developed countries should promise to cut their emissions 25 to 40 percent by 2020. The EU said that it would boycott the Bush Administration's parallel climate negotiations. The US refused to allow numbers into the Bali Action Plan's nonbinding preamble. As a compromise, the Bali Action Plan's sole footnote refers to the volumes and page numbers where the 25 to 40 percent reductions in emissions appear in the IPCC reports.
Reaching consensus was a draining process that extended through several nights and into an eleventh day of negotiations. Reducing the Nobel Prize-winning IPCC conclusions to a footnote kept the US at the table and willing to address climate change as indicated in the Fourth Assessment Report of the IPCC. The next two years will determine whether the international community can forge an effective and equitable international response to catastrophic climate change. David Doniger, policy director on climate change for the Natural Resources Defense Council, notes that the "no targets" position taken by developing countries prior to Bali became known as the Berlin Wall. At Bali, developing countries agreed to dismantle the Berlin Wall of climate change. "The door is open to negotiate binding obligations for both sides of the equation, developed and developing," explains Doniger, "[b]ut what it's going to take in order to get developing countries to move is for the United States to agree to an absolute limit and reductions." 
The Executive Secretary's "dismantling of the Berlin Wall" analogy describes one of the most important shifts at Bali. The Ad Hoc Working Group (AWG) on Long-Term Cooperative Action for the first time used "developed" and "developing" countries, instead of "Annex I" and "non-Annex I" countries. Common but differentiated responsibilities on the part of countries can be assessed based upon current economic capacities. Avoiding Annex language also brings the future role of the US squarely into the negotiations, irrespective of the US position not to ratify the Kyoto Protocol. Yet, moving away from the Kyoto Annex I framework may tempt Annex I countries to seek lower emissions commitments than they agreed to under the Kyoto Protocol. Proposals to establish a "firewall" retaining existing Annex I party commitments have been put forth.
After the COP adopted the Bali Roadmap, the Ad Hoc Working Group (AWG) under the Kyoto Protocol track held its closing plenary on the evening of December 15. In relation to the language that the AWG be guided by a "shared vision" of the Convention's ultimate objective, the AWG resolved to add the EU proposed language to spell out the findings of the IPCC's Fourth Assessment Report and the need for global emissions to peak within the next 10-15 years then fall to well below 2000 levels by the middle of the century. It also indicated that Annex I parties as a group would need to reduce their emissions by 25 to 40 percent from 1990 levels by 2020. Only Canada and the Russian Federation objected. The mitigation debate played out through the disputes under the Convention and under the Protocol over the IPCC Fourth Assessment Report. In the AWG under the Protocol, Canada, Japan, and Russia opposed any reference to the 25 to 40 percent reduction of greenhouse gas emissions. Under the Framework Convention track, the mitigation debate also cropped up in relation to the Dialogue on Cooperative Action. Countries, UN entities, intergovernmental organizations, non-governmental organizations, the media, and civil society struggled to reach common ground, particularly on mitigation, funding clean technology transfer, and adhering to scientific recommendations.
U.S. Domestic Legal Considerations
The global attention directed to the Bali negotiations has turned to the US election process. Congress first mandated international climate negotiations in 1987 when it enacted the Global Climate Protection Act. In 1992, President George H. W. Bush signed, and the Senate approved, the United Nations Framework Convention on Climate Change that brought together a coalition of countries for a coordinated approach to climate change. The Lieberman-Warner bill (S. 2191) has cleared the Senate Environment and Public Works Committee and is likely to be brought before the Senate floor in 2008. It proposes that US emissions be reduced by roughly 70 percent by 2050. States within the US have begun filling the regulatory gap on climate change mitigation. In Massachusetts v. Environmental Protection Agency, Massachusetts requested the US Supreme Court to grant an injunction requiring the EPA to regulate the carbon emissions of new motor vehicles pursuant to section 202(a)(1) of the Clean Air Act. The Supreme Court found that greenhouse gases are pollutants pursuant to the Clear Air Act and are subject to EPA regulation. Post-Bali the Bush administration remains concerned about US economic competitiveness in relation to booming economies in developing countries. James Connaughton notes that, "[w]e are giving serious consideration to the proposals from the European Union, Japan, and Canada of at least halving emissions by 2050 . . . making substantial cuts over the long term also requires some pretty significant changes in technology, especially when it comes to energy systems." The United States spent $18 billion on climate research between 1990 and 2006. In 2008 the US will launch a multi-billion dollar Clean Technology Fund with the goal of reducing trade barriers for environmental goods and services.
The Role of the United Nations
The British government has obtained the unanimous agreement of all fifteen of the Security Council's members for the Security Council to consider those parts of climate change that relate to the work of the Security Council. Issues placed on the agenda must involve "a threat to international peace and security." Climate change could displace 200 million people by the middle of the century according to the United Nations. UN Secretary General Ban Ki-Moon has noted that climate change is a comparable threat to war. The Security Council could create a subsidiary organ to work on greenhouse gas mitigation and climate adaptation and call upon all nations to produce annual climate implementation reports. A subsidiary organ of the Security Council could conduct reviews of state progress. United Nations members broadly acknowledge the transboundary ramifications of climate change. Article 27 of the UN Charter states that substantive Security Council decisions require the "affirmative vote of nine members, including the concurring votes of the permanent members." China and the United States are two permanent members of the Security Council that have delayed international climate cooperation. Thus, negotiations within the Security Council could serve as a catalyst for genuine climate consensus building.
Bali delegates discussed the building blocks (1) mitigation, (2) adaptation, (3) technology and (4) finance under the Bali Roadmap talks as well as in relation to such issues as launching the Adaptation Fund. The Bali Conference has launched a two-year negotiation process; established a deadline for concluding a new agreement at COP 15 and COP/MOP 5 in Copenhagen in 2009; and set forth a roadmap for a new agreement to be ratified and to enter into effect in 2013 when the Kyoto Protocol's first commitment period expires.
As the Bali Conference indicates, transparency and civil society participation can play a crucial role in achieving international agreement in keeping with scientific climate consensus. Forums that increase the frequency of interactions enable negotiators to build trust and form stable expectations. Four meetings are scheduled for 2008 rather than one to facilitate timely consensus building in this implementation phase of the Bali Roadmap. The new agreement will involve commitments to reduce emissions by developed parties to the agreement and measurable, verifiable and reportable actions by developing parties. Such actions will likely require financial and technical assistance from developed countries and/or finance from carbon trading. Multilateral coordination can develop a framework for climate stabilization. As Gandhi pointed out "we must be the change that we wish to see."
About the Author
Professor Elizabeth Burleson, an ASIL member, has a LL.M. from the London School of Economics and Political Science and a J.D. from the University of Connecticut School of Law. She has written reports for UNICEF and UNESCO and is a professor at the University of South Dakota School of Law. Professor Burleson attended the Bali Climate Conference with the UNICEF Delegation and helped facilitate youth participation on climate change law and policy.
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