Swine Flu, Pandemics, and Transnational Regulatory Networks

by Kenneth Anderson

 

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For a fascinating google-map of individual cases identified swine-flu occurrences, see here.  (Can’t vouch for its accuracy, however, and as H/T Futurepundit points out, it will rapidly get overwhelmed as more cases become identified over time.)

Among the interviews I participated in as one of the experts on the Gingrich-Mitchell UN reform commission back in 2005 was one with a senior WHO official.  I asked him – this was not long after SARS in Hong Kong – whether he thought it would be helpful if the WHO were able to have a mandate from the Security Council treating pandemics or epidemics that might be a serious concern (like SARS or swine flu) as something susceptible to Security Council orders that mandated implementation of recommendations of WHO.  Shouldn’t WHO be able to appeal to the Security Council or the political bodies of the UN in order to be able to have the greatest legitimacy to order forcible measures to prevent the spread of a serious epidemic disease?  

His look was one of utter consternation and horror, and he asked me please not to propose such an idea under any circumstances.  (And I’m not proposing that here, because I think he’s right.)  

In his view, the success that WHO had with SARS, in getting Hong Kong and China generally to go along with what were, from a political standpoint, draconian and costly measures, was entirely a function of the whole crisis not being politicized.  (Update: I mean here once past the refusal of authorities in China even to recognize what was happening – which, certainly, can be understood as far more important than what happened next.)  Of course, in one sense it was political – shutting down HK internally and cutting it off via the airports to the rest of the world – but these measures were proposed and undertaken by reasonably non-political technocrats on an issue that involved, on the one hand, purely medical issues but which also required very difficult and, because of all the contingencies, never fully provable, estimations of cost and benefit from various public health measures.  How long HK and China would have sustained such measures is unknown.  But whatever that period of time was, in this functionary’s view, the legitimacy needed to sustain these policies – costly in direct and indirect terms – was of a kind dependent on it being seen as apolitical in some important sense.  Not all senses, obviously – economic costs weighed against public health unknowns being political always – but not in the sense of the Security Council trying to make it into a matter of international peace and security.

WHO is not a transnational regulatory network, of course.  But it operates very much in coordination with national agencies such as the CDC and other leading state public health agencies that give it something of that flavor.  Is it a good example of the kind of technocratic legitimacy that network theorists – me included, in this case – sometimes ascribe to regulatory networks in some circumstances?  I did not get a chance to weigh in on the very interesting discussion of networks a little while ago, with Pierre-Hugues Verdier and David Zaring (linked to opening post, go forward to reach response and reply) in the Yale International Law Journal symposium – despite this being a great interest of mine, so this is an indirect contribution to that.  So what does this suggest?  Well, unfortunately, we won’t know unless (and God willing it will not be so) it is put to the test.  

When I say test, however, I don’t mean a true pandemic.  In that case, one would guess, all or anyway many bets are off.  One lesson of the global financial crisis, I take it, is that true crises easily overwhelm regulatory networks of these kinds; overwhelming crisis is not actually the test of them.  Serious but less than crisis conditions – SARS, for example – might be a better test.  But even there, I would suggest that networks are not about governance in that sense at all – they can’t be and shouldn’t be, because they lack that kind of legitimacy.  Instead, they are about non-crisis standard setting and best practices for crisis times, but mostly non crisis times.  They can plan and propose and all that for crises, and might perform very well in those circumstances, but, well, these are not moments in which to test one’s theories about how we have got beyond collective action problems.  

Those nation-states we have heard so much about, in other words?  True, the disaggregation of the state indeed renders them less able to act coherently, but they and they alone have the legitimacy, authority, resources, and muscle to be able to deal even poorly with these kinds of events.  There is, in the academic descriptions of the disaggregation of the state, much unstated enchantment with the idea itself, but when it comes to the production and distribution of Tamiflu, intellectuals should be careful what they sometimes seem to long for.  The return of the repressed, the thing apparently merely described but actually desired, might turn out at least once in a while to be the plague.  (One of my sisters-in-law, a filmmaker from HK, asked me what I thought her next film in HK should be – she shook her head and said, never, when I proposed a remake of either Death in Venice or else Twelfth Night, as a very dark comedy of mistaken identity, in a HK of face masks and fear in the weeks of SARS.  In twenty years, maybe, she said, but not for a long time, at least if she wanted ever to work again in HK.)   

There is the perfectly fair objection that the whole crisis with SARS was in large part a function of the nation state in question, China, even to acknowledge the situation, until the point that it might well have spun the rest of the world into a pandemic.  In Mexico, too, the WP story above notes that the US was not informed of what was occurring in Mexico until it was well underway.  So nation states are also a big part of the problem, because of their self interest in avoiding any costs to themselves until last possible moment, when the collective cost has ballooned immeasurably.  However, to judge by the instances in which international organizations engage in exactly the same kind of concealment – corruption at the World Bank, for example, or the oil for food scandal at the UN, with rounds and rounds of denial – there’s nothing special about nation states as self protective organizations in that way.  But their ability to coordinate action, at least in the cases of some leading states, is special.  This raises a point made by Francis Fukuyama in a short book on state building that he wrote while everyone else was arguing about many things post-9/11.  It is a point sometimes made by thoughtful libertarians.  What societies need is not weak states, but instead, states that are limited but which, within those limits, are strong.  

For that matter, serious-but-less-than-crisis occasions are also not a moment in which to double down bets on coordinated global action of a kind that have no track record, but which are bets which some have been willing to take, despite the bad outcomes for the issue at hand, because they believe that the real benefit is some imagined accretion of legitimacy and authority for ‘global governance’ in the abstract.  

(Movie poster image is from the Italian Cultural Institute, seems to be open source.)

http://opiniojuris.org/2009/04/26/swine-flu-pandemics-and-transnational-regulatory-networks/

2 Responses

  1. Has anyone been tracking the spread of swine flu on this website http://www.swine-flu-tracker.com/? It seems every time I check it the swine flu spreads.

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