Insights into surveillance from the influenza virus and benefit sharing controversy

Abstract

For more than fifty years, the World Health Organization has helped monitor flu viruses and manufacture vaccines through the Global Influenza Surveillance Network (GISN). However, GISN became a flashpoint for conflict when Indonesia refused to share its samples of avian influenza until drugs and other benefits were shared in return. Years of controversial negotiations were required to agree on a framework for virus and benefit sharing, providing important insights into disease surveillance, global norms, and international law. First, this controversy suggests that surveillance behaves like a luxury good, which complicates the conventional wisdom that it is a global public good. Second, even well-established norms were not immune to challenge, thereby limiting the significance of ‘tipping points’ and ‘normative cascades’. Finally, legal arguments were common in this controversy but equivocal and inconclusive, so international law is unlikely to affect important outcomes relating to outbreak response.

Keywords:

• biosecurity
• global norms
• international law
• public goods

Acknowledgments

The author would like to thank participants of the July 2011 ‘Politics of Disease Surveillance Workshop’, especially Sara Davies and Jeremy Youde, as well as Charles Belle, Simon Bronitt, Ian Hall, and Andrew O'Neil.

Notes

1 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52, no. 4 (1998): 887–917.

2 World Health Organization (WHO), ‘Cumulative Number of Confirmed Human Cases of Avian Influenza A(H5N1) Reported to WHO, 2003–2011’, http://www.who.int/influenza/human_animal_interface/EN_GIP_20111010CumulativeNumberH5N1cases.pdf (accessed November 6, 2011).

3 Human transmission has probably caused one or more clusters of cases (especially among members of the same family), but it is rare and not sustained. See Kumnuan Ungchusak et al., ‘Probable Person-to-Person Transmission of Avian Influenza A (H5N1)’, New England Journal of Medicine 352, no. 4 (2005): 333–40.

4 Siti Fadilah Supari, It's Time for the World to Change (in the Spirit of Dignity, Equity, and Transparency): Divine Hand Behind Avian Influenza, trans. Cardiyan HIS (Jakarta: PT Sulaksana Watinsa Indonesia, 2008).

5 Donald G. McNeil, Jr., ‘Bird Flu Case May Be First Double Jump’, New York Times, May 24, 2006; also, ‘Bird Flu Scare: Human Spread?’, CNN, May 24, 2006, http://articles.cnn.com/2006-05-24/health/indonesia.birdflu_1_human-to-human-transmission-bird-flu-h5n1?_s=PM:HEALTH

(accessed November 6, 2011).

6 Supari, It's Time for the World to Change, 16–18.

7 For a related explanation but distinct lessons, see Stefan Elbe, ‘Haggling over Viruses: The Downside Risks of Securitizing Infectious Disease’, Health Policy and Planning 25 (2010): 476–85.

8 Martin Enserink, ‘As H5N1 Keeps Spreading, A Call to Release More Data’, Science 311 (2006): 1224.

9 ‘A Shot of Transparency – Global Health’, The Economist, August 12, 2006.

11 Sedyaningsih et al., ‘Towards Mutual Trust, Transparency and Equity in Virus Sharing Mechanism’, 486.

10 Accounts vary on when Supari decided to withhold virus samples, as well as on when she learned about the Australian company's H5N1 vaccine. See Endang R. Sedyaningsih et al., ‘Towards Mutual Trust, Transparency and Equity in Virus Sharing Mechanism: The Avian Influenza Case of Indonesia’, Annals Academy of Medicine Singapore 37 (2008): 486; and Supari, It's Time for the World to Change, 24, 35–7.

12 Helen Branswell, ‘With Indonesian Bird Flu Standoff in the Spotlight, China Still Hoards Viruses’, The Canadian Press, April 15, 2007.

13 Supari, It's Time for the World to Change, 66, 75.

14 SMTAs usually function as contracts in private law, which differs from public international law between states. Nevertheless, Indonesia and its allies wanted these contracts to govern exchanges between state laboratories, an international organization (WHO), and third parties (i.e. industry).

15 Mike Leavitt. ‘Secretary Mike Leavitt's Blog’, 2008, http://archive.hhs.gov/secretarysblog/my_weblog/pandemic_planning/index.html (accessed November 6, 2011).

16 Quote reported by Sangeeta Shashikant, ‘WHO: Key Elements of Virus and Benefit-sharing Framework Still Unresolved’, South–North Development Monitor, May 19, 2009. On the International Federation of Pharmaceutical Manufacturers and Associations, see Kaitlin Mara, ‘Officials Working Informally Towards May Consensus on Avian Flu Preparedness’, Intellectual Property Watch, April 8, 2009.

17 Margaret Chan, ‘Opening Remarks at the Director-General's Consultation with Member States on Pandemic Influenza Preparedness’, October 19, 2009, http://www.ip-watch.org/weblog/wp-content/uploads/2009/10/chan-flu-speech-oct-09.pdf (accessed November 7, 2011).

18 Similar conclusions are reached – using different evidence – by Philippe Calain, ‘From the Field Side of the Binoculars: A Different View on Global Public Health Surveillance’, Health Policy and Planning 22 (2007): 13–20.

19 See David P. Fidler, SARS, Governance and the Globalization of Disease (New York: Palgrave Macmillan, 2004), 66. For a more sophisticated but still contestable assessment, see David Woodward and Richard D. Smith, ‘Global Public Goods and Health: Concepts and Issues’, in Global Public Goods for Health: Health Economic and Public Health Perspectives, ed. Richard D. Smith et al. (New York, Oxford University Press, 2003), 14.

20 If surveillance is expensive, then it might resemble the public good of national defense. Frank L. Smith, ‘Look But Don't Touch: Overemphasis on Surveillance in Analysis of Outbreak Response’, Global Health Governance 3, no. 2 (Spring 2010), 7. Likewise, if demand for surveillance is income elastic, then it might resemble the public good of a lighthouse that is in disproportionate demand by people wealthy enough to travel by boat.

21 For example, ‘Statement by Mike Leavitt, Secretary of Health and Human Services, On the World Health Assembly Resolution on Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits’, May 23, 2007, http://www.hhs.gov/news/press/2007pres/05/pr20070523a.html (accessed November 7, 2011).

22 Pierre-Yves Geoffard and Tomas Philipson, ‘Disease Eradication: Private versus Public Vaccination’, The American Economic Review 87, no. 1 (1997): 222.

23 Supari, It's Time for the World to Change, 5. This is not to say that price was not a factor as well.

24 Fidler, SARS, Governance and the Globalization of Disease, 35.

25 See Robert Roos, ‘Indonesia Reports 20 H5N1 Cases – 19 Fatal – since January’, CIDRAP News, December 30, 2009; ‘Indonesia Assures It Will Report Bird Flu Cases’, The Canadian Press, June 13, 2008. Alternatively, Indonesia may have reported these cases to WHO and this information was kept confidential, in which case Indonesia may not have violated the IHR (depending on the timing). But confidential information is exclusive – contrary to the definition of a public good. This would also challenge the claim that WHO provides ‘human security’ (rather than national security), since confidentiality would mean reserving information for states rather than reporting it directly to the public.

26 WHO, International Health Regulations (2005), 2nd edition (Geneva: WHO Press, 2008), Article 6. But see Maria Cheng, ‘UK's Attempts to Stop Swine Flu Called Flawed’, Associated Press, May 21, 2009.

27 Supari, It's Time for the World to Change, 5.

28 Stated differently, ‘the reason for collecting, analyzing and disseminating information on a disease is to control that disease. Collection and analysis should not be allowed to consume resources if action does not follow. Appropriate action, therefore, becomes the ultimate response goal and the final assessment of the earlier steps of a surveillance system’: William H. Foege, Robert C. Hogan, and Ladene H. Newton, ‘Surveillance Projects for Selected Diseases’, International Journal of Epidemiology 5, no. 1 (1976): 30.

29 Finnemore and Sikkink, ‘International Norm Dynamics and Political Change’, 897–8.

30 Nor can Indonesia be dismissed as a rogue state. Not only was ‘internationalism’ a sanctioned philosophy (pancasila) when it won independence; Indonesia was also a driving force behind the founding of the Association of Southeast Asian Nations, and it remains so to this day.

31 Early arguments about the logic of appropriateness did not conflate ‘appropriate’ with ‘good’, since it was recognized that historical inefficiency can produce suboptimal outcomes. James G. March and Johan P. Olsen, ‘The Institutional Dynamics of International Political Orders’, International Organization 52, no. 4 (1998): 943–69. Unfortunately, subsequent scholarship tends to confuse appropriateness with desirability or even morality.

32 David Fidler, ‘Indonesia's Decision to Withhold Virus Samples from the World Health Organization: Implications for International Law’, American Society of International Law Insights 11, no. 4 (2007).

33 ‘Statement by Mike Leavitt, Secretary of Health and Human Services, On the World Health Assembly Resolution on Pandemic Influenza Preparedness’; ‘International Health Regulations: The Challenges Ahead’, The Lancet 369 (2007): 1763.

34 WHO, International Health Regulations (2005), Articles 46 and 13.

35 Fidler, ‘Indonesia's Decision to Withhold Virus Samples from the World Health Organization’.

36 For example, see Jack L. Goldsmith and Eric A. Posner, ‘A Theory of Customary International Law’, The University of Chicago Law Review 66, no. 4 (1999): 1113–77.

37 Sedyaningsih et al., ‘Towards Mutual Trust, Transparency and Equity in Virus Sharing Mechanism’, 487.

38 See David P. Fidler, ‘Influenza Virus Samples, International Law, and Global Health Diplomacy’, Emerging Infectious Diseases 14, no. 1 (2008): 91.

39 Claudio Chiarolla, ‘Plant Patenting, Benefit Sharing and the Law Applicable to the Food and Agriculture Organization Standard Material Transfer Agreement’, The Journal of World Intellectual Property 11, no. 1 (2008): 7.

40 Norm shopping is so common that is taken for granted, even though this term – analogous to ‘forum shopping’ – is rarely used. For a similar usage and definition, see Richard Posner, ‘Social Norms and the Law: An Economic Approach’, American Economic Review 87, no. 2 (1997): 367.

41 WHO, ‘Landmark Agreement Improvises Global Preparedness for Influenza Pandemics’,

http://www.who.int/mediacentre/news/releases/2011/pandemic_influenza_prep_20110417/en/index.html (accessed November 7, 2011).

42 Open-Ended Working Group of Member States, Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits (WHO, May 5, 2011), 18.

43 David P. Fidler and Lawrence O. Gostin, ‘The WHO Pandemic Influenza Preparedness Framework: A Milestone in Global Governance for Health’, JAMA 306, no. 2 (2011): 200–201; and comments reported by Martin Enserink, ‘“Breakthrough” Deal on Flu Strains Has Modest Provisions’, Science 332, no. 6029 (2011): 525. For a useful critique, see Adam Kamradt-Scott and Kelley Lee, ‘The 2011 Pandemic Influenza Preparedness Framework: Global Health Secured or a Missed Opportunity?’, Political Studies 59, no. 4 (2011): 831–847.