Global Outbreak of Avian Influenza A (H5N1) and International Law

David P. Fidler
January 25, 2004
The outbreak of avian influenza A (H5N1) in Asia has become a global crisis for animal and human health. On January 27, 2004, the World Health Organization (WHO), Food and Agricultural Organization (FAO), and the World Organization for Animal Health (OIE) appealed for global collaboration and funding to control the outbreak. [1] This crisis comes less than a year after the outbreak of Severe Acute Respiratory Syndrome (SARS) led to an unprecedented global effort to contain a new microbial threat. [2] , [3] The avian influenza outbreak is further evidence of the serious threat infectious diseases pose in the global era. This Insight provides basic information on the avian influenza outbreak and briefly discusses its implications for international law.
Basic Information on Avian Influenza A (H5N1) [4]
Avian influenza, commonly called "bird flu," is an infectious disease of birds caused by strains of the influenza virus. Avian influenza was first identified a century ago.  Many types of avian influenza viruses affect domesticated and wild bird populations all over the world. Avian influenza viruses often cause only mild illness in birds, but highly pathogenic virus strains have appeared, spreading rapidly through flocks and causing high mortality in bird populations.
The first cases of avian influenza viruses in humans occurred in 1997, when the H5N1 virus triggered an outbreak in Hong Kong, infecting 18 people, six of whom died. The human cases occurred at the same time the H5N1 virus ripped through Hong Kong's poultry population. The human outbreak alarmed public health officials because a highly pathogenic strain of avian influenza "jumped species" and caused mortality in humans. Fear about the H5N1 virus resurfaced in February 2003, when a H5N1 outbreak in Hong Kong caused two cases with one death. The H5N1 virus was thought to be a possible culprit of the large outbreak of respiratory disease in Guangdong Province, China, which later turned out to be SARS.
In neither the 1997 nor 2003 outbreaks did the H5N1 virus establish human-to-human transmission. In all cases, humans became infected through contact with infected birds, typically poultry, or their excreta. The greater concern was the potential for the H5N1 virus to undergo "antigenic shift"-swapping genetic material with human influenza viruses to produce a highly pathogenic microbe transmissible from person to person. The H5N1 virus' potential for antigenic shift is significant because it mutates rapidly and acquires genes from viruses infecting other animal species. Experts believe that the massive and rapid culling of poultry populations in Hong Kong in 1997 avoided a pandemic of the H5N1 virus in bird and human populations.
Global Outbreak of Avian Influenza (H5N1), December 2003-January 2004
The present outbreak of the H5N1 virus began in mid-December 2003, when South Korea identified the virus in poultry populations. [5] From mid-December 2003 until January 27, 2004, the H5N1 virus has been identified in nine countries in Asia: South Korea, Japan, Vietnam, Thailand, Cambodia, Indonesia, Pakistan, Laos, and China. [6] As of January 27, 2004, humans infected with the H5N1 virus have been identified in only Thailand and Vietnam; but suspected human cases are being investigated in Cambodia. [7] WHO describes the scale of this H5N1 outbreak as "historically unprecedented," [8] causing "a disaster for agricultural production" in the Asia region and a "global threat to human health." [9]
Destruction of flocks and import bans applied against poultry exports of affected countries have decimated this industry in the Asian region. The unprecedented scale of the spread of the H5N1 virus creates two major public health threats: (1) the widespread presence of the virus in poultry and other birds increases the chances of human infection; and (2) the increased likelihood of human infection raises the prospect that humans will serve as "mixing vessels" for the emergence of a new influenza virus that transmits from human to human, an event that could trigger a global influenza pandemic. [10]
The global threat of avian influenza A (H5N1) motivated WHO, OIE, and FAO to appeal to countries to join in a global collaboration effort to fight the outbreak similar to the global campaign that successfully contained SARS in 2003. [11]
Avian Influenza A (H5N1) and International Law
International Health Regulations
As was the case when SARS emerged, the global effort against the H5N1 virus will take place without a specific international legal framework on infectious disease control. The International Health Regulations (IHR) [12] only apply to three infectious diseases-cholera, plague, and yellow fever. [13]   No other international agreement on infectious diseases is currently binding on WHO member states.  The IHR are as irrelevant to the current avian influenza outbreak as they were to the SARS outbreak.
WHO has been revising the IHR since 1995 to make them more relevant to the global infectious disease threat. [14] In January 2004, WHO released an interim text of the proposed IHR revisions for consultations with its member states. [15] The revision process is expected to be completed by May 2005; [16] thus, the new IHR will not be legally applicable to the current avian influenza crisis. The outbreak underscores, as did SARS, the urgent need for WHO member states to revise the IHR to provide an international legal framework for global efforts against infectious disease threats. [17]
Regime coordination between animal and human health
Unlike SARS, avian influenza A (H5N1) poses global threats to both animal and human health, requiring close collaboration among, and coordinated action by, WHO, OIE, and FAO. The main public health intervention is destruction of poultry flocks in affected countries, [18] [19] serves as a worrying example of diverging public health and agricultural interests. A key area of collaboration will be efforts to convince countries in Asia to change radically animal husbandry to reduce microbial threats, such as SARS and avian influenza, created by existing animal production and food-processing practices. [20] an intervention that requires the mobilization of animal health and agricultural assets. If public health and agricultural interests are not aligned, gaps will undermine the global containment effort. Indonesia's decision (to date) not to cull its poultry flocks despite the presence of the H5N1 virus in the country
Trade restrictions and the SPS Agreement
Many countries have applied trade restrictions on imports of birds and their products (e.g., meat, eggs, and semen) from Asian countries affected by the H5N1 virus. China has, for example, banned poultry imports from South Korea, Japan, Vietnam, and Thailand.  Such trade restrictions implicate the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO). [21] In accordance with the SPS Agreement, WTO member states are notifying the SPS Committee of trade restrictions applied to poultry exports from affected countries. [22] [23] Countries, at present, justify these trade restrictions on animal health grounds, and the highly pathogenic nature of the H5N1 virus in bird populations means that such restrictions are unlikely to be challenged under SPS Agreement requirements for a scientific justification for trade-restricting health measures. The role of trade in the unprecedented geographical spread of the H5N1 virus, however, is not presently understood.
Intellectual property rights and technologies to fight the H5N1 virus
As part of its response to the avian influenza A (H5N1) outbreak, WHO has accelerated development of technologies useful in containing the virus. Although diagnostic technologies in influenza laboratories are good, diagnostics for clinical purposes need improvements. [24] [25] In addition, the H5N1 virus is exhibiting resistance to some cheaper anti-viral drugs used to treat influenza. [26] Finally, WHO is stressing the need to develop a vaccine for the H5N1 virus and has accelerated efforts to achieve this objective. [27] Anti-viral drugs that show effectiveness against influenza A virus strains are available but are expensive and in limited supply.
The development and use of new anti-H5N1 technologies will require participants in these endeavors to forgo intellectual property rights in the interest of creating needed "global public goods," as was done in the global campaign against SARS. Attempts to exercise such rights will trigger opposition and again raise the "public health v. intellectual property rights" controversy that led to the Doha Declaration on the TRIPS Agreement and Public Health, which provided that "the TRIPS Agreement does not and should not prevent members from taking measures to protect public health." [28]
Human rights concerns
To date, the avian influenza A (H5N1) outbreak has not raised concerns about civil and political rights that arose in the response to SARS (e.g., isolation and quarantine) because the H5N1 virus has not established human-to-human transmission. Should the feared antigenic shift in the H5N1 virus occur, the human rights concerns triggered by SARS are likely to be greatly magnified in response to public health efforts to contain a global influenza pandemic.
The H5N1 virus outbreak has raised another human rights concern-compensation for government destruction of private property. The right to property is recognized, for example, in the Universal Declaration of Human Rights. [29] This right is not absolute, and governments may infringe upon it for various reasons, including the protection of the public's health. Government compensation for private property destroyed in the public interest is one way to respect the right to property. WHO, OIE, and FAO have stressed the importance of compensation in the global campaign to stop the H5N1 outbreak. [30]
Principles of state responsibility and accusations about cover-ups in Thailand and Indonesia
Critics have accused the Thai and Indonesia governments of attempting to hide H5N1 outbreaks in their territories. [31] These accusations are similar to those leveled at China's attempt to conceal its SARS outbreak last year. As in the SARS outbreak, the failure of governments to deal transparently with other nations concerning epidemic-prone diseases can contribute to further spread of dangerous pathogens within and between countries. It is not clear that concealment of diseases would violate existing principles of state responsibility.  Consequently, in light of the controversy surrounding the responses of the Thai and Indonesian governments to the current outbreaks, new global norms in this area are needed, as proposed in the revised IHR, rather than leaving it to individual states to determine what measures to take.
About the Author: 
David P. Fidler is Professor of Law and Ira C. Batman Faculty Fellow at Indiana University School of Law, Bloomington and currently a Visiting Senior Research Scholar at the Centre for International Studies, University of Oxford.
[1] WHO, Press Release: Unprecedented Spread of Avian Influenza Requires Broad Collaboration-FAO/OIE/WHO Call for International Assistance, January 27, 2004, at
[2] See, e.g., previous ASIL Insights on SARS: David P. Fidler, SARS and International Law, April 2003, at and David P. Fidler, Developments Involving SARS, International Law, and Infectious Disease Control at the Fifty-Sixth Meeting of the World Health Assembly, June 2003, at
[3] On the international legal and governance implications of the SARS outbreak, see David P. Fidler, "SARS: Political Pathology of the First Post-Westphalian Pathogen," 31 Journal of Law, Medicine & Ethics (Dec. 2003) and David P. Fidler, SARS, Governance, and the Globalization of Disease (Basingstoke: Palgrave Macmillan, 2004).
[4] This section relies on WHO, Avian Influenza-Fact Sheet, January 15, 2004, at
[5] WHO, Avian Influenza A (H5N1) in Humans and Poultry in Viet Nam, Jan. 13, 2004, at
[6] "Bird Flu: Global Response Sought,", Jan. 27, 2004, at
[7] Id.
[8] WHO, Avian Influenza A (H5N1) Infection in Humans: Urgent Need to Eliminate the Animal Reservoir-Update 5, Jan. 22, 2004, at
[9] WHO, supra note 1.
[10] WHO, supra note 4.
[11] WHO, supra note 1.
[12] WHO, International Health Regulations, 1969 (Geneva: WHO, 3rd ann. ed., 1983).
[13] Id., art. 1.
[14] WHO, Global Crises-Global Solutions: Managing Public Health Emergencies of International Concern Through the Revised International Health Regulations (Geneva: WHO, 2002).
[15] WHO, International Health Regulations: Working Paper for Regional Consultations, Intergovernmental Working Group on the Revision of the International Health Regulations, IGWG/IHR/Working Paper/12/2003, Jan. 12, 2004, at
[16] WHO, Press Release, WHO Executive Body Reaffirms WHO Leadership for Global Public Health, Jan. 23, 2004, at 
[17] This author will shortly produce an ASIL Insight describing the substantive content of the interim draft of the IHR.
[18] WHO, Avian Influenza A (H5N1)-Update 7, Jan. 24, 2004, at
[19] J. Hookway and T. Mapes, "Bird Flu Troubles Health Agency," Wall Street Journal, Jan. 27, 2004, at A12.
[20] Id. (noting FAO's desire "to spur Asian governments to make some fundamental changes in livestock-raising practices").
[21] Agreement on the Application of Sanitary and Phytosanitary Measures, reprinted in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge: Cambridge University Press), 59-72.
[22] See, e.g., Philippines, Notification of Emergency Measures, WTO Doc. G/SPS/N/PHL/50, Jan. 13, 2004 (temporary ban on importation of domestic and wild birds and their products from the Republic of Korea).
[23] Hookway and Mapes, supra note 19, at A12.
[24] WHO, supra note 4.
[25] Id.
[26] "Global Bid to Beat Bird Flu,", Jan. 27, 2004, at  ("The WHO is also highly concerned because the bird flu appears resistant to cheaper anti-viral drugs used to treat regular influenza.").
[27] WHO, supra note 1.
[28] Doha Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, Nov. 20, 2001, ¶4, at
[29] Universal Declaration of Human Rights, art. 17, UNGA Res. 217A (III), Dec. 10, 1948, at
[30] WHO, supra note 1.
[31] "Bird Flu: Global Response Sought," supra note 6.