| 2 Web JCLI|
Senior Lecturer in Law
University of Essex
Copyright © 2000 Bob Watt.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
From earliest times humanity has been afflicted by plagues. The most famous of these, at least to British readers, is the Black Death of the fourteenth century. About 1 August 1348 the disease appeared in Devon. It spread rapidly throughout the country; by the end of 1349 approximately 40% of the population of some four million people had succumbed. We may think that it will never happen again; but we will do well to recall the influenza epidemic of 1918-19 which killed some 20 million people worldwide; and the AIDS pandemic, mainly affecting sub-Saharan Africa and South-East Asia, which has killed nearly 12 million people and left some 30 million living with the disease. David Fidler's almost unique and timely book addresses the neglected subject he terms microbialpolitik, the international political efforts to control the infectious diseases which have ravaged mankind.
Why is it timely? The Black Death is said to have originated in Central Asia, to have been contracted from fur-bearing animals and to have been spread to Europe by ship rats and their fleas. When one considers the paucity of international and intercontinental travel in the fourteenth century, and reflects that most people never moved more than 20 miles from their birthplace in their lifetime, and compares that with the 500 million people who have flown internationally since 1945, it should not be surprising that Fidler (p 14) draws our attention to the fact that national quarantine and public health strategies have become ineffective. Fidler does us the great service of drawing our attention to the complacency with which populations (p 6) and international lawyers (p 1) view the threat of pandemic infectious disease. He quickly makes the point (p 2) that the control of infectious disease was one of the earliest projects and most extensive projects undertaken by the practitioners of international law, despite the facts that their efforts seem to have been contaminated with racism (pp 28-35) and to be largely ignored by academic commentators (pp 1-2). The greatest merit of Fidler's book is that he comprehensively supplies the latest omission.
The second good thing about his book is that he provides, in his Introduction, a concise guide to the contents. This is invaluable, not least to reviewers, for a brief edited reproduction of his guide will enable the reviewer quickly to summarise the contents and move swiftly to concentrate upon the real substance of the book. The book contains nine chapters and a weighty appendix which contains Fidler's draft of a WHO Convention on global infectious disease prevention and control.
After the Introduction, his second chapter contains a brief history of international law on the control of infectious diseases. His third chapter contains an in depth analysis of the International Health Regulations implemented by the World Health Organisation. Chapter four contains a discussion of the sources of international law concerned with disease control. Chapters five to eight examine respectively the measures adopted in international law to deal with health concerns in international trade, human rights, armed conflict and environmental protection. Since HIV/AIDS often raises human rights problems, for reasons which this reviewer remains unable to fathom, HIV/AIDS is discussed extensively in Chapter six.
Chapter nine contains a theoretical analysis of the framework of international law in regulating health and disease and it is here, and in Chapter five and the Appendix that this reviewer wishes to take issue with the book. The reviewer takes issue with Fidler's theoretical framework. Clearly, from a purely academic perspective this should be viewed as praise rather than criticism because it demonstrates Fidler's capacity to stimulate the reader. Perhaps, obliquely, it also suggests that Fidler has more skill than the reviewer as a politician, for - perhaps from a position of unalloyed cynicism - it would seem more likely that Fidler's anodyne of a Convention will be adopted in preference to any more radical measure. The substantive criticisms advanced by the reviewer may seem harsh and to step outside the conventional discussion of the academic merits of the book. However, since Fidler offers himself as a hostage to fortune by advancing a draft Convention he exposes himself as a campaigner and thus is vulnerable to political attack. The reviewer has nothing but praise to offer in respect of the academic merits of the book, however the reviewer can only reject Fidler's political project.
Fidler suggests (pp 279ff) that there are four players upon the stage of microbialpolitik; sovereign states; the international system between states which fosters and promotes co-ordination between states causing them to act as if they were parts of a whole; international society, which is the broader society of states in which they all act as citizens according to a common system of rules within institutions. Finally Fidler recognises global society; a society of individuals and non-state entities that conceive of themselves as members of a single society. The problem with this framework, as least as it applies to systems of disease control, is that it excludes the main players in actual disease control and therapy. This reviewer would argue that disease control has two elements - the political and the physical. Fidler deals with the political with consummate skill, the problem is that the real challenge posed by microbes is physical. Disease causing organisms do not obey norms, they may only be repelled or controlled by appropriate physical means including, where necessary, drug therapies. This reviewer finds it surprising that Fidler has not given an explicit role to the pharmaceutical companies in the quest for improved health. Furthermore, in his fifth chapter where he considers the role of international trade in microbialpolitik, he expends a lot of words on quarantine and sanitary (SPS) measures but very little on measures designed to produce and distribute new and effective drugs. Such a discussion occupies less than two pages of his book, under the heading 'Other International Trade Law Issues and Infectious Disease Control'. He acknowledges that ' the main engines for development of anti-microbial drugs are pharmaceutical companies' (p 163) and comments obliquely upon their support for a strictly policed Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), saying that (w)hilst TRIPS "offers pharmaceutical companies better international rules on patent protection, the loss of patented agents remains a concern. These concerns partly explain why many pharmaceutical companies have not pursued more vigorously, for example, anti-malarial drugs despite the desperate global need for them." Fidler thus reveals his support for a particular kind of world economic order, which accepts that the pursuit of higher profitability by major pharmaceutical firms (amongst other companies) should take precedence over measures to control disease. This issue is being faced head-on by the South African Government in its efforts to make anti-HIV drugs available more cheaply to those affected by the pandemic. This reviewer has suggested that large parts of the world already host a generation lost to the ravages of HIV/AIDS (see Watt 1998). Fidler recognises the problem (p 211), but fails to propose any solution. Is he really saying (see p 212 n245) that the world must rely upon the unencumbered free market and the generosity of pharmaceutical companies in supplying that which may be regarded as crumbs from their groaning tables?
Finally then, Fidler's proposal for a World Health Organization Framework Convention on Global Infectious Disease Prevention and Control fails, in the view of this reviewer, to provide appropriate positive obligations to improve health standards. The suggestions advanced by Fidler, in particular in his draft proposals for Protocols to the Convention (Art 41 at p 329) do not seem to recognise the concerns of the developing world, but seem designed to promote a new cordon sanitaire. At 41.6 Fidler calls for Protocols to set out rules on (a) anti-microbial resistance in pathogenic agents. No doubt the emergence of multi-antibiotic resistant Staphylococcus aureus in the hi-tech operating theatres of the developed world is a problem, but not in the context of the emergence of multi-insecticide resistant strains of Anopheles mosquito. Secondly, he calls for a protocol on xenotransplantation. This does not seem to be a matter of great concern to those countries in which the annual health budget is less than $20 per head. Thirdly, Fidler calls for a Protocol on the movement of human blood, products and organs in international commerce. In which direction does he think the goods in this trade will move? It seems to this reviewer that the Protocol could easily be written to ensure that this new form of slavery could well be regulated to do no more than ensure the cleanliness of the product. Fourthly, Fidler calls for a Protocol to improve the vaccination rates of children internationally, but he does not suggest any measures to oblige pharmaceutical companies to develop new vaccines, especially where he acknowledges that they have all but withdrawn from the search (see, for example, p 163). Finally he suggests a Protocol for improving the use of new information technologies for infectious disease prevention and control. Again, this seems primarily to be a mechanism for establishing and enforcing an effective cordon sanitaire for the protection of the wealthy and healthy west and north.
This book has enormous academic merits, however this reviewer suggests that it is fatally flawed as a political programme, because it does nothing more than reinforce the present global imbalance in health. It is respectfully suggested that more radical proposals are required.
Watt, B (1998) 'Young People affected by HIV/AIDS: The Forgotten Pandemics or A Force for Change'  Childright (December issue).