Disaster Law

Hurricane Katrina and Internally Displaced Persons

Victims of hurricane Katrina are internally displaced persons, not refugees
In widely circulated media reports in the days following the disaster of hurricane Katrina, victims of the hurricane were labeled "refugees."[1] Other reports had victims rejecting such classifications and insisting on their status as American citizens. As a matter of international law, it is clear that persons who were forced to flee the hurricane and the subsequent disasters on the Gulf coast are not refugees. Rather, the international community refers to such persons as internally displaced. A particular set of international standards applies to them.
 
Refugees are persons who flee abroad because their own government denies them human rights protection either by persecuting them actively or by not helping them against dangers emanating from third parties. International law protects such persons by means of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol[2] and regional instruments such as the 1969 Refugee Convention of the Organization of the American States (OAS) and the 1984 Cartagena Declaration.
 
The victims of hurricane Katrina who had to flee their homes have neither left the United States nor lost any of their human rights vis-à-vis the U.S. government. However, they have left their homes involuntarily and thus are internally displaced persons within the meaning of the 1998 Guiding Principles on Internal Displacement. The Guiding Principles describe such persons as "persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State [international] border" (preamble, paragraph 2).
 
A normative framework for addressing the specific needs of internally displaced persons
 
No specific international convention (treaty) protects the rights of persons displaced within their own national borders by natural disasters or other causes. Nevertheless, as individuals who have not left their own country, they remain entitled to the full range of human rights that are applicable to the citizens of that country. The challenge is to identify those guarantees and concepts implicit in existing international law that respond to the special needs of internally displaced persons.
 
In 1992 the UN Commission on Human Rights appointed Dr. Francis Deng, of Sudan, as the first Representative of the UN Secretary General on Internally Displaced Persons. A few years later, he was asked to prepare an appropriate normative framework.[3] Dr. Deng then developed the Guiding Principles on Internal Displacement and submitted them to the Commission in 1998.[4]
 
This document details, in 30 principles, the specific meaning for internally displaced persons of the general human rights and humanitarian law guarantees found in international law. It covers all three phases of internal displacement: the pre-displacement phase, the situation during displacement, and the phase of return or resettlement and reintegration. As Dr. Deng stressed at that time, the purpose of these Principles was "to address the specific needs of internally displaced persons worldwide by identifying rights and guarantees relevant to their protection" and thus to provide guidance not only to the Representative in carrying out his mandate, but also to governments, intergovernmental and non-governmental organizations, and others, when they are faced with the phenomenon of internal displacement.
 
Dr. Deng underlined that the Principles "reflect and are consistent with international human rights law and international humanitarian law" and restate the relevant principles applicable to the internally displaced, which were then widely dispersed in existing instruments. Further, he said, the Guiding Principles would clarify any gray areas and address gaps that may exist.[5] They were elaborated on the basis of a thorough compilation and analysis of norms applicable to situations of internal displacement as contained in relevant human rights law, international humanitarian law and refugee law instruments.[6]
 
The Guiding Principles have not been iterated in a treaty. Nevertheless, in a resolution adopted on December 22, 2003 the UN General Assembly adopted a resolution recalling "the relevant norms of international human rights law, international humanitarian law and international refugee law" and recognizing "that the protection of internally displaced persons has been strengthened by identifying, reaffirming and consolidating specific standards for their protection, in particular through the Guiding Principles on Internal Displacement." [7] The World Summit Outcome document approved on September 16, 2005, by the UN General Assembly at the end of the meeting at the UN of more than 150 Heads of State and Government declares, "We recognize the Guiding Principles on Internal Displacement as an important international framework for the protection of internally displaced persons."[8]
 
These instruments were adopted by consensus, i.e. with the tacit agreement of the United States and other participating countries. Such instruments are not formally binding under international law, but they serve as evidence of what the international community recognizes as the relevant norms. Thus, the Guiding Principles provide guidance to all authorities faced with problems of displacement, including U.S. authorities at all levels. As experience in the context of the tsunamis of December 26, 2004 has shown, the practical value of the Guiding Principles (which have been referred to primarily when addressing displacement by armed conflict) extends to natural disasters.[9]
 
The United States has ratified two multilateral treaties that are relevant in the context of hurricane Katrina. They are the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination. Unlike the victims in most countries affected by the tsunamis, the citizens of the United States are not directly protected by the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women or the Convention on the Rights of the Child, because the United States has not ratified those conventions. Moreover, in the absence of armed conflict, international humanitarian law is not applicable despite the fact that troops have been sent to the disaster areas to restore law and order.
 
The three phases of displacement
 
As has been mentioned above, the Guiding Principles cover all three phases of displacement, namely protection against displacement, protection during displacement, and the post-displacement phase. In accordance with general international law, the Principles stress that during all three phases, the primary duty and responsibility for protecting and assisting the displaced lies not with the international community, but with national authorities (Principle 3). Although Principle 3 refers to national authorities, under the international law of state responsibility the national State would be responsible at the international level for the conduct of a constituent state or local authority as well.[10] Each of the Principles mentioned below is relevant to the disaster caused by hurricane Katrina.
 
(1) Protection against displacement
 
Natural disasters present particular challenges for the fulfillment of the national responsibility to protect persons from displacement. Earthquakes, floods, tornados, tsunamis and other natural disasters are beyond the capacity of any State to prevent. However, as affirmed in the "Hyogo Declaration" adopted at the World Conference on Disaster Reduction, held in Kobe, Japan, in January 2005, "States have the primary responsibility to protect the people and property on their territory from hazards and ... to give high priority to disaster risk reduction in national policy, consistent with their capacities and resources available to them."[11]
 
In this regard, international human rights law, in particular the right to life, plays an important role. A State's obligations with respect to the right to life include not only the negative obligation to refrain from arbitrary deprivation of life by its own agents, but also the obligation to take positive measures to protect persons within its jurisdiction from foreseeable threats to life from other sources, whether emanating from third parties or from natural disasters. This approach has been taken by both regional and global human rights monitoring mechanisms. For example, in Öneryildiz v. Turkey,[12] the European Court of Human Rights was confronted with a situation where a methane explosion at a landfill site caused a landslide engulfing ten dwellings and killing thirty-nine people. A Grand Chamber of the Court found the Turkish authorities in breach of the right to life, as State officials and authorities did not do everything within their power to protect the victims from the immediate and known risks to which they were exposed. At the global level, the Human Rights Committee has said that States have a duty to take positive measures to protect the right to life expressed in article 6 of the International Covenant on Civil and Political Rights.[13] Guiding Principle 5 similarly calls on authorities to prevent and avoid conditions that might lead to displacement of persons.
 
Guiding Principle 6(2)(d) contemplates forced evacuation in cases of disasters, to the extent that the safety and health of those affected so requires. This is based on and is in line with Article 12(3) of the Covenant on Civil and Political Rights, which recognizes that freedom of movement may be restricted if provided by law and necessary to protect such things as public health. However, even in this situation Principles 7 and 8 continue to apply. These Principles call for the examination of all possible alternatives to displacement, and for provision of proper accommodation in satisfactory conditions of safety, nutrition, health and hygiene. In addition, the evacuation is to be carried out in a manner respecting rights to life, dignity, liberty and security of those affected. Principle 4(1) says that the Principles are to be applied without discrimination of any kind, such as race, sex, ethnic or social origin, age or disability.
 
(2) Protection during displacement
 
The Covenant on Civil and Political Rights sets forth basic human rights, including the right to life, the right to security of person and liberty of movement. These rights are detailed with greater specificity in the Guiding Principles. Under Principles 10, 11 and 12, the rights to life, physical integrity and personal security of all individuals affected by displacement are protected. Under Principles 14 and 15, rights to freedom of movement, including in or out of camps, and choice of residence, as well as the right to seek safety in another part of the country, are provided for. Under Principle 18, all internally displaced persons, without discrimination, have the right to an adequate standard of living, including, at a minimum, equal access to food, shelter, water, housing, clothing and health care. Principle 20 says that individuals have the right of recognition as persons before the law, such that State authorities are obliged to provide the necessary documentation, including that lost in the course of displacement, without unreasonable restrictions.
 
Guiding Principle 21 focuses on property rights. It provides that no one shall be arbitrarily deprived of property, and that possessions left behind should be protected against destruction and illegal appropriation, occupation or use.
 
(3) Protection after displacement
 
Rights of the displaced do not cease once the initial displacement comes to an end. The Covenant on Civil and Political Rights again provides a basis for the Principles on return, resettlement and reintegration. Article 12(1) of the Covenant supplies a basic right to liberty of movement and freedom to choose a residence. Guiding Principle 28(1) calls on States' authorities to establish the conditions and means for internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. An important corollary, set forth in Principle 29(2), is that assistance is to be extended by the competent authorities to internally displaced persons seeking to recover, to the extent possible, lost or dispossessed property and possessions. Under Principle 28(2), special efforts should be made to ensure the full participation of the displaced persons in the planning and management of their return or resettlement and reintegration.
 
Conclusions
 
The relevant international human rights treaties and the derivative Guiding Principles on Internal Displacement set out a comprehensive framework aimed at protecting people from displacement and guiding decision-makers during and after any displacement. They apply to situations of natural disaster just as they do to other contexts of displacement. State action oriented around these standards will go far to safeguard the rights of the displaced and to respond sensitively to human tragedies such as those caused by hurricane Katrina.
About the author
Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, and is an honorary editor of the American Journal of International Law. The author is grateful to Walter Kälin for his assistance in the preparation of this Insight. The content of the Insight is the sole responsibility of the author.
 
Footnotes
[1] For example, see CNN's report of August 29, 2005, Superdome shelters thousands of Katrina Refugees, available at http://www.cnn.com/2005/WEATHER/08/29/superdome.ap/.
[2] The Convention was adopted on July 28, 1951, by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of December 14, 1950. The Protocol was approved by the Economic and Social Council in resolution 1186 (XLI) of November 18, 1966 and was taken note of by the General Assembly in resolution 2198 (XXI) of December 16, 1966.
[3] See Commission on Human Rights Resolution 1996/52 (UN Doc. E/CN.4/RES/1996/52, April 19, 1996) calling "upon the Representative of the Secretary-General to continue, on the basis of his compilation and analysis of legal norms, to develop an appropriate framework in this regard for the protection of internally displaced persons."
[4] UN Doc. E/CN.4/1998/53/Add.2. The Principles were developed after Dr. Deng had submitted a Compilation and Analysis of Legal Norms (Report of the Representative of the Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1996/52/Add. 2) and Part II, Legal Aspects Relating to Protection Against Arbitrary Displacement (UN Doc. E/CN4/1998/53/Add.1). All these documents, together with Annotations of the Guiding Principles are reprinted in Walter Kälin, Guiding Principles on Internal Displacement - Annotations, American Society of International Law, Studies in Transnational Legal Policy No. 32 (Washington D.C., 2000).
[5] Report of the Representative of the Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission resolution 1997/39, Addendum, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (February 11, 1998), Introductory note to the Guiding Principles, paras. 9 and 10.
[6] Compilation and Analysis of Legal Norms, Report of the Representative of the Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1996/52/Add. 2 (1995) and Part II, Legal Aspects Relating to Protection Against Arbitrary Displacement, UN Doc. E/CN4/1998/53/Add.1 (1998).
[7] UN Doc. A/RES/58/177, preambular paragraphs.
[8] Draft Outcome Document, para. 132, available at http://www.un.org/summit2005/Draft_Outcome130905.pdf.
[9] See: Protection of Internally Displaced Persons in Situations of Natural Disaster, A Working Visit to Asia by the Representative of the United Nations Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, 27 February to 5 March 2005, available at www.ohchr.org/english/issues/idp/index.htm.
[10] International Law Commission's Articles on State Responsibility, art. 4, UN Doc. A/RES/56/83, Annex (2002). See James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries 94-99 (2002).
[11] UN Doc. A/CONF.206/6.
[12] Application No 48939/99, judgment of November 30, 2004.
[13] CCPR General Comment No. 6, para. 5 (1982), in UN Doc. A/37/40, Annex V (1982).
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28
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Frederic L. Kirgis
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Wednesday, September 21, 2005

The Indian Ocean Tsunami and International Law

The tsunami in the Indian Ocean triggered by the massive earthquake on December 26, 2004, caused large-scale death and destruction in many countries and stimulated a significant relief effort from the international community. The unprecedented magnitude of this disaster raises questions about the role of international law with respect to preparing for, detecting, and responding to natural disasters. This Insight considers how international law has been used in connection with natural disasters and whether more active use of international law in this area should be pursued in the wake of the tsunami tragedy.
 
International Law and Disasters
Disasters are typically categorized as man-made (or technological) disasters and natural disasters. A body of international law has been developed to help states prevent, prepare for, and respond to technological disasters with potential transboundary effects, such as maritime, industrial, and nuclear accidents and emergencies. Many treaties in the area of technological disasters were developed after major incidents, in order to incorporate lessons states learned in handling such disasters. For example, treaties concerning emergencies involving nuclear energy facilities were concluded after the Chernobyl disaster in the former Soviet republic of Ukraine. [1]
 
Natural disasters often trigger responses that involve many states, international organizations, and non-governmental actors. This multi-jurisdictional and multi-actor context would seem to call for using the tools of international law to help organize and facilitate preparation for, and responses to, natural disasters. Yet, international law has been little used to prepare for tsunami disasters specifically or to respond to natural disasters generally.
 
Tsunami Alert and Preparedness
Unlike technological disasters, states cannot cooperate and build regimes to prevent some natural disasters, such as earthquakes and tsunamis. At best, states can deploy systems to provide early warning of events with potential to cause disasters and to prepare communities for such events. When disaster-causing events can affect a number of states, incentives exist for states to build multilateral regimes for disaster event alert and preparedness.
 
Tsunamis can be local, regional, or ocean-wide in their effects. The impact of tsunamis can be reduced by early detection of tsunamigenic seismic activity, dissemination of warnings, and activation of mitigation plans established through preparedness activities. A multinational Tsunami Warning System in the Pacific has functioned in the Pacific Ocean region since the mid-1960s. Formed in the aftermath of the destructive Pacific-wide tsunami of 1960, it is a multilateral endeavor operating through UNESCO's Intergovernmental Oceanographic Commission. [2]
 
No tsunami alert and preparedness system exists in the Indian Ocean region, despite warnings that the eastern Indian Ocean is extremely vulnerable to seismic activity that could cause tsunamis. [3] For example, Indonesia experienced six destructive local or regional tsunami events between 1977 and 1996. [4]
 
Building a tsunami alert and preparedness system in the Indian Ocean region may be a high diplomatic priority after the devastation experienced in December 2004. [5] This effort could take different forms, including simply extending or replicating the Tsunami Warning System in the Pacific or elevating tsunami alert and preparedness as an international objective through adoption of a treaty. The treaty approach could provide a way for states vulnerable to tsunamis to establish a comprehensive global approach to tsunami alert and preparedness based on the lessons learned from the Tsunami Warning System in the Pacific.
 
Disaster Relief and International Law
The importance of international law to the facilitation of disaster relief was recognized at least as early as 1927 in the Convention Establishing an International Relief Union, the preamble of which indicated that the states parties desired "to render aid to each other in disasters, to encourage international relief by a methodical co-ordination of available resources, and to further the progress of international law in this field." [6] The International Relief Union "marked the first and, to date, only instance when states attempted to launch a universal, treaty-based structure for disaster response and prevention . . . [but] [t]he Union never fulfilled its promised and perished along with the League of Nations System." [7]
 
The state of international law on disaster relief has for many years been considered inadequate. The administrator of the United Nations Development Programme observed in 1977 that many experts had suggested that "a convention is the best means available to resolve the complex tangle of issues surrounding disaster relief[.]" [8] In 2000, the International Federation of the Red Cross and Red Crescent Societies (International Federation) argued that, despite the existence of some treaty law relating to disaster relief:
 
At the core is a yawning gap. There is no definite, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance. No systematic attempt has been made to pull together the disparate threads of existing law to formalize customary law or to expand and develop the law in new ways. . . . There are no universal rules that facilitate secure, effective international assistance, and many relief efforts have been hampered as a result. [9]
 
To address this situation, the International Federation launched the International Disaster Response Law (IDRL) project in 2000. The IDRL project has collected and analyzed existing international legal instruments relevant to disaster relief. [10] Key deficiencies identified by IDRL research include regional disparities in the existence of treaties relevant to disaster relief; diversity in the content of treaties relating to disaster relief; "disparate and inconclusive" legal principles on disaster relief; and significant aspects of disaster relief not properly addressed. [11]
 
Efforts to use international law to facilitate disaster relief appear in treaties on air, maritime, and land transportation and on customs procedures. [12] Regional approaches can be found in disaster-specific agreements, such as the Council of Europe's Agreement on the Prevention of, Protection Against, and Organization of Relief in Major Natural and Technological Disasters (1987) (21 states parties) and the Inter-American Convention to Facilitate Disaster Assistance (1991)(2 states parties). The Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations (1998) (30 states parties), which entered into force on January 8, 2005, facilitates provision of one kind of disaster relief resource by creating procedures for telecommunications assistance in any disaster setting.
 
In response to the Indian Ocean tsunami, the IDRL project identified significant disaster relief problems. The IDRL coordinator argued that "[t]he tsunami operation has once again highlighted the complexities of getting relief across borders in the shortest time and with maximum efficiency. Humanitarian organisations are not only having to cope with damaged infrastructure, they are also dealing with 12 different governments and 12 different sets of customs regulations. Delays in getting aid to those who need it cost lives." [13]
 
The IDRL project does not expressly advocate the adoption of a global convention on disaster relief but, at present, focuses on identifying ways national and international law can be improved to facilitate better disaster relief. Given the multilateral nature of most serious natural disasters, development of international law on disaster relief may become necessary. The experience of the response to the Indian Ocean tsunami may stimulate such development.
 
Of SARS and Tsunamis: International Law and Comprehensive Collective Security
The international legal issues raised by the Indian Ocean tsunami echo concerns voiced in other contexts about the need to rethink concepts of "security" in the face of non-military threats to human well-being. Recently, the UN Secretary-General's High Level Panel on Threats, Challenges, and Change made the case for "comprehensive collective security," which the Panel defined as security not only from war but also from poverty, infectious disease, and environmental degradation. [14] Under this perspective, the revision of the International Health Regulations proposed by the World Health Organization and stimulated by the SARS outbreak in 2003 constitutes a potentially new kind of collective security agreement. [15]
 
The Secretary-General's High Level Panel said that environmental degradation has worsened the destructive potential of natural disasters in recent years. The Panel noted that "[m]ore than two billion people were affected by such disasters in the last decade, and in the same period the economic toll surpassed that of the previous four decades combined." [16] As SARS did in the case of infectious diseases, the tsunami tragedy perhaps raises the need to think about natural disasters through the lens of comprehensive collective security and to focus more attention on governance regimes that will more effectively protect, alert, and provide relief to populations threatened by natural disasters.
 
About the author:
 
David P. Fidler is Professor of Law and Harry T. Ice Faculty Fellow at Indiana University School of Law, Bloomington.
[1] Convention on the Early Notification of a Nuclear Accident, Sept. 26, 1986, 1439 UNTS 275; and Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, Sept. 26, 1986, 1457 UNTS 133.
 
[2] The United Nations Educational, Scientific, and Cultural Organization (UNESCO) established the Intergovernmental Oceanographic Commission in 1961.
 
[3] Intergovernmental Oceanographic Commission, Tsunami Warning System in the Pacific: Master Plan (2nd ed., 1999), at 16.
 
[4] Id., at 4.
 
[5] See UNESCO, UNESCO Plans Global Tsunami Warning System for Mid-2007, Press Release, Jan. 13, 2005.
 
[6] Convention Establishing an International Relief Union, July 12, 1927, 135 LNTS 247.
 
[7] International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2000 149 (2000) [hereinafter World Disasters Report 2000]. Technically, the functions of the International Relief Union were transferred to the UNESCO. See Patrick Myers, Succession Between International Organizations 36 (1993).
 
[8] Bradford Morse, Practice, Norms and Reform of International Humanitarian Rescue Operations, 157 Recueil des Cours 121, 189 (1977 (IV)).
 
[9] World Disasters Report 2000, supra note 7, at 145.
 
[10] International Federation of Red Cross and Red Crescent Societies, International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges (2003).
 
[11] International Federation of Red Cross and Red Crescent Societies, IDRL Legal Research: Research into Existing IDRL Treaties, IDRL Fact Sheet No. 6, March 2003.
 
[12] World Disasters Report 2000, supra note 7, at 152.
 
[13] International Federation of Red Cross and Red Crescent Societies, Tsunami Operation Offers Reminder of Need for Disaster Reduction Measures, Press Release, Jan. 12, 2005.
 
[14] UN Secretary-General's High-Level Panel on Threats, Challenges, and Change, Report--A More Secure World, Our Shared Responsibility 1-2 (2004) [hereinafter A More Secure World].
 
[15] The second intergovernmental negotiating session on the revision of the International Health Regulations is scheduled to take place from February 21-25, 2005, in Geneva. The first negotiating session took place in November 2004.
 
[16] A More Secure World, supra note 14, at 26.
 
Addendum
 
From January 18-22, the United Nations sponsored the World Conference on Disaster Reduction (World Conference) in Kobe, Hyogo Prefecture, Japan.1 Although the UN had scheduled this conference before the Indian Ocean tsunamis occurred at the end of December 2004, this disaster factored significantly into the World Conference's deliberations.
 
The World Conference issued a Common Statement on the Indian Ocean Disaster, which stressed, among other things, (1) the importance of improved regional cooperation and coordination mechanisms for disaster reduction and disaster relief; and (2) the need to establish tsunami early warning systems in the Indian Ocean region.2 With respect to an Indian Ocean tsunami warning system, the World Conference noted the efforts being made by ASEAN and Thailand to promote a regional tsunami warning system in the aftermath of the tsunami tragedy.3 The World Conference also welcomed the offer made by Germany to host a United Nations conference on early warning systems for disasters in early 2006.4
 
The World Conference adopted the Hyogo Declaration5 and the Hyogo Framework for Action, 2005-2015.6 The Declaration and Framework for Action frame disaster reduction strategies as critical components for sustainable development on a global basis. The Framework of Action specifically identifies the need to use international law in the implementation of its strategic goals and action priorities, arguing that "an enabling environment is vital to stimulate and contribute to developing the knowledge, capacities and motivation needed to build disaster resilient nations and communities. . . . In the coming years, consideration should be given to ensuring the implementation and strengthening of relevant international legal instruments related to disaster risk reduction."7
 
1 For information about this conference, see World Conference on Disaster Reduction, 18-22 January 2005, Kobe, Hyogo, Japan, http://www.unisdr.org/wcdr/.
 
2 World Conference on Disaster Reduction, Common Statement of the Special Session on the Indian Ocean Disaster: Risk Reduction for a Safer Future, A/CONF.206/L.6/Rev.1, Jan. 20, 2005.
 
3Id., preamble (ASEAN Special Leaders' Meeting on January 6, 2005) and ¶11 (Thailand's proposed convening of a ministerial meeting on January 28-29, 2005 in Phuket, Thailand to discuss regional cooperation on tsunami early warning arrangements).
 
4Id., ¶12.
 
5 World Conference on Disaster Reduction, Hyogo Declaration, A/CONF.206/L.3/Rev.1, Jan. 22, 2005.
 
6 World Conference on Disaster Reduction, Hyogo Framework of Action, 2005-2015, A/CONF.206/L.2/Rev.1, Jan. 22, 2005.
 
7Id., ¶22.
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9
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3
Author: 
David P. Fidler
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Date: 
Tuesday, January 18, 2005

International Lawyers and Legal Experts Write Open Letter to the United Nations on Humanitarian Aid in Syria (April 28, 2014)

Author: 
Nicole R. Tuttle

On April 28, 2014, thirty-five international lawyers and legal experts signed an open letter

Blog Name: 

Can International Norms Protect Us From Natural Disasters?

Author: 
Clive Baldwin

Moderator:  David Fisher

Speakers: Ingrid Nifosi-Sutton; Kirsten Bookmiller; Michael Gerrard; Elizabeth Ferris

Blog Name: 

IG Update: International Refugee Law Interest Group to Propose Student Writing Competition, Elect New Co-Chairs, and Hold Social Gathering

Author: 
Richard Falk & Tom Syring

ASIL’s International Refugee Law Interest Group welcomes all of you to this year’s Annual Meeting and the numerous exciting opportunities to connect it presents!

New Ways to Respond to Climate Change in the Arctic

Introduction

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.[1] 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.[2] 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.

Background

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”).[3] The Arctic Council was established in 1996 in Ottawa, Canada by means of a declaration.[4] 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.[5] 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.[6] 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.[7] 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”),[8] and also in regard to the Environmental Impact Assessment (“EIA”) Guidelines.[9] 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)[10]—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[11] (“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).[12] Both treaties are firmly anchored in broader agreements already in existence, such as the 1979 International Convention on Maritime Search and Rescue,[13] the 1944 Convention on International Civil Aviation,[14] and the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation.[15]

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.[16] 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.[17]

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.[18] 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.[19]

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.

About the Author:

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).

Endnotes:

[1] See Arctic Climate Impact Assessment [ACIA] Synthesis Report, Impacts of a Warming Arctic, available at http://www.acia.uaf.edu/pages/overview.html.
[2] Only the states that have territorial sovereignty areas above the Arctic Circle are member states of the Council.
[3] Declaration on the Protection of the Arctic Environment (June 14, 1991), available at http://arctic-council.org/filearchive/Rovaniemi%20Declaration.pdf.
[4] Declaration on the Establishment of the Arctic Council (Sept. 19, 1996), Joint Communiqué and Declaration on the Establishment of the Arctic Council, 35 I.L.M. 1382 (1996).
[5] ACIA Synthesis Report, supra note 1.
[6] Timo Koivurova, Limits and Possibilities of the Arctic Council in a Rapidly Changing Scene of Arctic Governance, 46 Polar Rec. 146-56 (2010).
[7] There are rare exceptions to this, e.g., the Arctic Marine Shipping Assessment and examination on how states have followed its policy recommendations.
[8] Timo Koivurova, Governance of Protected Areas in the Arctic, 5 Utrecht L. Rev. 44-60 (2009), available at http://www.utrechtlawreview.org/index.php/ulr/article/viewFile/URN%3ANBN%3ANL%3AUI%3A10-1-101113/94.
[9] Timo Koivurova, Transboundary Environmental Assessment in the Arctic, 26 Impact Assessment & Project Appraisal, 265-75, 270-71 (2008).
[10] Arctic Marine Shipping Assessment 2009 Report, available at http://www.pame.is/images/stories/AMSA_2009_Report/AMSA_2009_Report_2nd_print.pdf.
[11] Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 50 I.L.M. 1119 (2011), available at http://library.arcticportal.org/1474/1/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011.pdf [hereinafter SAR Agreement].
[12] The Arctic Council’s Emergency Prevention, Preparedness and Response Working Group is preparing a separate but related document on Recommended Practices in the Prevention of Marine Oil Pollution to be adopted in the next ministerial meeting of the Council in May 2013.
[13] International Convention on International Maritime Search and Rescue, Apr. 27, 1979, 1405 U.N.T.S. 97, available at http://www.admiraltylawguide.com/conven/searchrescue1979.html.
[14] Convention on International Civil Aviation, Dec. 7, 1944, 15 U.N.T.S. 295, available at http://www.icao.int/publications/pages/doc7300.aspx.
[15] International Convention on Oil Pollution Preparedness, Response and Co-operation, Nov. 30, 1990 (entered into force May 13, 1995), available at http://www.ecolex.org/server2.php/libcat/docs/TRE/Multilateral/En/TRE001109.txt.
[16] Notably, the SAR Agreement has spurred cooperation between the defense ministers of the Arctic states.
[17] Erik J. Molenaar, Current and Prospective Roles of the Arctic Council System Within the Context of the Law of the Sea, 27 Int’l J. of Marine and Coastal L. 553–95 (2012).
[18] See Parliamentarians of the Arctic Region, Conference Statement No. 1 (Sept. 5-7, 2012), available at http://www.arcticparl.org/files/conference-statement%2C-final-draft1.pdf.
[19] See Waliul Hasanat, Soft-law Cooperation in International Law; the Arctic Council’s Efforts to Address Climate Change (2012).
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Timo Koivurova
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Tuesday, October 23, 2012

Risky Research and Human Health: The Influenza H5N1 Research Controversy and International Law

Introduction

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.

Background

H5N1 is a global health concern. It first caused human infections and deaths during a poultry outbreak in Hong Kong in 1997.[1] 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%.[2] 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.”[3] 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,[4] leading to arguments that these strains should be destroyed.[5]

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.[6]

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.”[7] 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”)[8] 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.[9]

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.[10] 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.[11] 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.”[12] 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,[13] 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[14] 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.[15] 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[.]”[16]

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,[17] 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.[18] Under international law, governments can restrict this right by law when necessary to protect national security or public health[19] —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. [20] This freedom, too, is not absolute because governments can limit it to protect national security or public health.[21]

Summary

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.[22] 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.[23] 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.”[24] 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.[25]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.

About the Author:
David P. Fidler, as ASIL member, is the James Louis Calamaras Professor of Law at the Indiana University Maurer School of Law.

Endnotes:
 

[1] World Health Organization [WHO], H5N1 Avian Influenza: Timeline of Major Events, at 1 (Dec. 13, 2011), available at http://www.who.int/influenza/human_animal_interface/avian_influenza/H5N1_avian_influenza_update.pdf.
[2] WHO, Cumulative Number of Confirmed Human Cases for Avian Influenza A (H5N1) Reported to WHO, 2003-2011 (Jan. 5, 2012), available at http://www.who.int/influenza/human_animal_interface/EN_GIP_LatestCumulativeNumberH5N1cases.pdf.
[3] Press Release, U.S. Department of Health and Human Services, NSABB Review of H5N1 Research (Dec. 20, 2011), available at http://www.nih.gov/news/health/dec2011/od-20.htm.
[4] See, e.g., Thomas V. Inglesby, Anita Cicero & D. A. Henderson, Ctr. for Biosecurity of UPMC, The Risk of Engineering a Highly Transmissible H5N1 Virus(Dec. 2011), available at http://www.upmc-biosecurity.org/website/resources/publications/2011/2011-12-15-editorial-engineering-H5N1.
[5] See, e.g., An Engineered Doomsday, N.Y. Times, Jan. 7, 2012, available at http://www.nytimes.com/2012/01/08/opinion/sunday/an-engineered-doomsday.html.
[6] See, e.g., Laurie Garrett, Flu Season, For. Policy, Jan. 5, 2012, available at http://www.foreignpolicy.com/articles/2012/01/05/flu_season.
[7] Press Release, WHO, WHO Concerned That New H5N1 Influenza Research Could Undermine the 2011 Pandemic Influenza Preparedness Framework (Dec. 30, 2011), available at http://www.who.int/mediacentre/news/statements/2011/pip_framework_20111229/en/index.html?placeValuesBeforeTB_=savedValues&TB_iframe=true&height=600&width=1000&.
[8] Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 1015 U.N.T.S. 163 (entered into force Mar. 26, 1975).
[9] United Nations, Disarmament: Confidence-Building Measures, http://www.unog.ch/bwc/cbms.
[10] Final Declaration of the Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Doc. BWC/CONF.VII/7, Part III.B & Part III.D (Dec. 22, 2011), available at http://www.unog.ch/80256EDD006B8954/(httpAssets)/570C9E76CAAB510AC1257972005A6725/$file/ADVACNCE-BWC+7RC+Final_Document.pdf.
[11] International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, 2149 U.N.T.S. 256.
[12] S.C. Res. 1540, ¶ 3, U.N. Doc. S/RES/1540 (Apr. 28, 2004).
[13] WHO, International Health Regulations(2005) (2d ed. 2008), available at http://www.who.int/ihr/9789241596664/en/index.html.
[14] WHO, Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits, WHA Res. 64/8, Attach. 2 (May 5, 2011), available at http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_8-en.pdf.
[15] WHO, supra note 7.
[16] Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, Preamble, CETS No. 168, Jan. 12, 1998.
[17] International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976)
[18] Id. art. 19(2).
[19] Id. art. 19(3).
[20] International Covenant on Economic, Social, and Cultural Rights art. 15(3), Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976).
[21] Id. art. 4.
[22] See, e.g., WHO Laboratory Biosafety Manual (3d ed. 2004), available at http://www.who.int/csr/resources/publications/biosafety/Biosafety7.pdf.
[23] WHO, Scientific Review of Variola Virus Research, 1999-2010 (2010).
[24] John Steinbruner, Elisa D. Harris, Nancy Gallagher & Stacy M. Okutani, Ctr. for Int’l & Sec. Studies, Controlling Dangerous Pathogens: A Prototype Protective Oversight System 45 (2007).
[25] Helen Branswell, WHO Will Take a Role in Solving Issues Raised by Bird Flu Studies Controversy, Canadian Press, Jan. 15, 2012, available at http://www.winnipegfreepress.com/world/breakingnews/who-will-take-a-role-in-solving-issued-raised-by-bird-flu-studies-controversy-137381403.html.
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David P. Fidler
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Thursday, January 19, 2012

International Law and the E. coli Outbreaks in Europe

Introduction

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”).[1] E. coli-related diseases are “transmitted to humans primarily through consumption of contaminated foods[.]”[2] EHEC can cause bloody diarrhea and abdominal pain.[3] HUS is a life-threatening disease caused by toxins produced by EHEC.[4] HUS is characterized by acute renal failure, anaemia, and low platelet count.[5] In prior outbreaks, HUS predominantly affected children, but the European outbreaks involve many adults.[6]

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.[7] 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.[8] One fatality from HUS has been reported outside Germany.[9] 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)[10] —is thought to be the pathogenic cause.[11] News reports indicate that European physicians have been alarmed that the strain appears resistant to antibiotics.[12] As of June 6, 2011, the source of the outbreaks had not been determined,[13] but is believed to be associated with consumption of raw vegetables perhaps grown with manure containing the deadly E. coli strain.[14]

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)”).[15] The IHR (2005) is legally binding on all WHO member states.[16] 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.”[17]

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”).[18] 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.[19] 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?[20]

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.[21] 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.[22]

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.[23]

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.[24] These obligations also exist under EU rules on freedom of movement of goods[25] and in the World Trade Organization (“WTO”) Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”).[26] 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.[27]

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[28] 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.”[29] 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.”[30] 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.[31]

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,[32] 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,[33] 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.”[34]

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.[35] 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.[36] 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).[37] 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.[38] Persons traveling to affected areas have been advised to avoid consuming raw vegetables.[39] 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.

Conclusion

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[40] —an increasing global health concern[41] 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.[42] 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.”[43] 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.

Endnotes:

[2] WHO, Enterohaemorrhagic Escherichia coli (EHEC), Fact Sheet No. 125 (May 2005 (revised)), available at http://www.who.int/mediacentre/factsheets/fs125/en/.
[3] Id.
[4] Id.
[5] Id.
[6] WHO, Outbreak of Haemolytic Uraemic Syndrome in Germany, May 27, 2011, available at http://www.who.int/csr/don/2011_05_27/en/index.html.
[7] WHO Regional Office for Europe, EHEC Outbreak, supra note 1.
[8] Id.
[9] Id.
[10] U.S. Centers for Disease Control and Prevention, Investigation Announcement: Outbreak of Shiga Toxin-Producing E. coli O104 (STEC O104:H4) Infections Associated with Travel to Germany, June 2, 2011, available at http://www.cdc.gov/ecoli/2011/ecoliO104/.
[11] Kate Kelland, Europe E. coli is Toxic New Strain, Trade Row Grows, Reuters, June 2, 2011, available at http://news.yahoo.com/s/nm/20110602/hl_nm/us_ecoli.
[12] Gardiner Harris, U.S. Calls Antibiotics Wrong Step on E. Coli, N.Y. Times, June 2, 2011, available at http://www.nytimes.com/2011/06/03/health/03treatment.html?hpw.
[13] Judy Dempsy, E. Coli Not Found in Initial Tests on Sprouts, N.Y. Times, June 6, 2011, available at http://www.nytimes.com/2011/06/07/world/europe/07germany.html?hp.
[14] WHO, EHEC Outbreak: Increase in Cases in Germany, June 2, 2011, available at http://www.who.int/csr/don/2011_06_02/en/index.html; and WHO, Enterohaemorrhagic Escherichia coli (EHEC), supra note 2.
[15] WHO, International Health Regulations (2005) (2nd ed., 2008) [hereinafter IHR (2005)].
[16] WHO Const., arts. 21 & 22.
[17] IHR (2005), art. 2, supra note 15.
[18] Id. art. 6.
[19] Id. art. 1.
[20] Id. Annex 2.
[21] Id. art. 11.
[22] Id. arts. 12 & 15.
[23] Veggie Sprouts from Germany Blamed in E. Coli Outbreak; Toll at 22 Dead, Over 2200 Sick, Wash. Post, June 5, 2011, available at http://www.washingtonpost.com/world/qatar-bans-imports-of-cucumber-tomato-lettuce-from-germany-and-spain-over-e-coli-out....
[24] IHR (2005), art. 43, supra note 15.
[25] See generally Europa, Freedom of Movement of Goods: General Framework, available at http://europa.eu/legislation_summaries/internal_market/single_market_for_goods/free_movement_goods_general_framework/ind....
[26] Agreement on the Application of Sanitary and Phytosanitary Measures, in WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 59-72 (1999) [hereinafter SPS Agreement].
[27] Kumanan Wilson, John Brownstein & David P. Fidler, Strengthening the International Health Regulations: Lessons from the H1N1 Pandemic, Health Policy and Planning (July 1, 2010), doi:10.1093/heapol/czq026, available at http://heapol.oxfordjournals.org/content/early/2010/07/01/heapol.czq026.full.pdf+html.
[28] Dempsy, supra note 13.
[29] Kelland, supra note 11.
[30] John Dalli, European Union Press Release, EU Commissioner for Health and Consumer Policy, Statement on the E. coli Outbreak, June 1, 2011, available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/404&format=HTML&aged=0&language=EN&guiLanguage=en.
[31] Kelland, supra note 11. The United Arab Emirates and Qatar imposed bans on imports of cucumbers, tomatoes, and lettuce from Germany and Spain. Qatar Bans Importing Cucumbers in Fear of E. Coli, MEANAFN.com, June 5, 2011, available at http://www.menafn.com/qn_news_story_s.asp?storyid=1093418825.
[32] WHO, EHEC Outbreak, supra note 14; and WHO, Enterohaemorrhagic Escherichia coli (EHEC), supra note 2.
[33] See, e.g., Council Regulation (EC) No. 2679/98 of 7 December 1998 on the Functioning of the Internal Market in relation to the Free Movement of Goods Among the Member States, available at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Regulation&an_doc=1998ν_doc=2679 (establishing a rapid intervention mechanism for addressing breaches of the principle of the free movement of goods).
[34] WHO, Implementation of the International Health Regulations (2005): Report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) 2009, WHO Doc. A64/10, May 5, 2011, §24, available at http://apps.who.int/gb/ebwha/pdf_files/WHA64/A64_10-en.pdf.
[35] Id. § 28.
[36] SPS Agreement, art.11, supra note 26.
[37] Wilson, Brownstein & Fidler, supra note 27.
[38] U.S. Centers for Disease Control and Prevention, supra note 10.
[39] U.S. Centers for Disease Control and Prevention, Outbreak Notice: Shiga Toxin-Producing E. coli O104:H4 Infections in Germany, June 3, 2011, available at http://wwwnc.cdc.gov/travel/notices/outbreak-notice/2011-germany-europe-e-coli.htm
[40] Harris, supra note 12.
[41] WHO, Reduce Use of Antimicrobials in Food-Producing Animals (World Health Day 2011), available at http://www.who.int/world-health-day/2011/presskit/whd2011_fs4d_subanimal.pdf.
[42] IHR (2005), arts. 5 & 13, supra note 15.
[43] WHO, Report of Review Committee, § 23, supra note 34.
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David P. Fidler
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Monday, June 6, 2011