REFLECTIONS ON EMPIRE

Pandemic, Empire and the Permanent State of Exception

Cindy Patton

This essay considers a brief moment in the H1N1 flu controversy the attack on the World Health Organisation by the Council of Europe as exemplar of a type of struggle for sovereignty post-empire. It extends Giorgio Agambens formulation of the permanent state of exception to examine how member states of supranational organisations partially delegate their own capacity to declare health emergencies of varying scale and scope. It goes on to ask whether the structures of consciousness about the dangers of global disease and utility of promised disease control that was embedded in the will to expansion of classic empires have now been transformed into a new mechanism of control on behalf of a different type of translocal force.

Although it is too early to write the obituary for swine flu, medical experts, already assessing how the first pandemic in 40 years has been handled, have found that while luck played a part, a series of rapid but conservative decisions by federal officials worked out better than many had dared hope. (McNeil 2010) There have been allegations the WHO was in league with the pharmaceutical industry, declaring the [H1N1] pandemic to generate windfall profits for companies making vaccine and antiviral drugs. The parliamentary assembly of the Council of Europe1 has announced it will hold a debate on the topic entitled False pandemics, a threat to health at the end of the month and has asked WHO officials to testify. (The Canadian Press 2010)

Cindy Patton (ckpatton@sfu.ca) teaches sociology at the Simon Fraser University, British Columbia, Canada.
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nfluenza is notorious for appearing in multiple strikes often a first mild emergence heralds a more deadly second wave a few months later. That is just what happened in the 1918 Spanish flu epidemic, which still stands as the high watermark for modern pandemic disease (Crosby 2003). The potential for this pattern, coupled with out-of-season emergence also a characteristic of the 1918 epidemic made epidemiologists very nervous when H1N1 influenza arrived late in the spring of 2009. Scientists had implemented new influenza reporting systems in South-east Asia after the severe acute respiratory syndrome (SARS) virus struck in 2002-03, but the first batch of suspected H1N1 cases occurred in Mexico, where influenza surveillance is less intense. Influenza modellers had been anticipating a major, potentially catastrophic pandemic, but of A(H5N1), an avian variant of the kind that should be detectable very early if it emerged, as predicted, in south-east Asia. Alert to scientists worries, many countries spent extravagantly on H1N1 vaccination, and even those that had not, devoted considerable time and energy to prepare for an eventual pandemic. The world braced for the Big One, but after six months of H1N1, no apocalypse came. Even before the flu season was over (and certainly before there could be a second strike), the World Health Organisation (WHO) came under attack for declaring an H1N1 pandemic (WHO Representative Office, Vietnam 2010). By the middle of 2010, the Council of Europe (CofE), conspiracy theorists, individual countries (primarily in Europe) and the Inter national Health Regulations Review Committee (which conducted an internal assessment for the WHO) had all made studies of the season, making the 2009-10 season the most intensively and immediately scrutinised influenza cycle since the 1918 pandemic. This essay considers the brief moment of influenza controversy, especially the attack on the WHO by the Cof E , as exemplar of a type of struggle for sovereignty post-empire. The concept

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of post-empire asks us to identify which specific forms of global power linger in a new form since the decline of explicit ambitions by powerful nations to overtake or defend broad swaths of territory. Other scholars have examined cultural imperialism (Tomlinson 1991; Said 1993) or symbolic imperi alism (Bourdieu 1991). I turn to a different manifestation of post- empire here, but I do not want to call it medical imperia lism, a term already critiqued for its overemphasis on medical professions as the source of medical expansionism (Strong 1979), and hence, operating independently of classic structures of empire. Instead, I want to highlight the role of the identification and control of disease (which might occur through nonmedical means) in relationship to structures of power. The concept of world health follows the early 20th century era of major interventions on the part of the British, Russian, Chinese, and Japanese empires to quell disease, the era in which nationally specific (though scientifically similar) systems of public health services were created in each of those nations and across the spaces of their empires. This essay examines just one small case to ask whether the structures of consciousness about the dangers of global disease and utility of promised disease control that was embedded in the will to expansion simply disappears with the decline of classic empires, or whether it is transformed into a new mechanism of control on behalf of a different type of translocal force. I extend Giorgio Agambens (2000) formulation of the permanent state of exception, developed as a refinement of Michel Foucaults work on modern state sovereignty (2007), to consider how member states of supranational organisations partially delegate their own capacity to declare health emergencies of varying scale and scope. But an augmentation to Agambens concept will be required, for, the WHO has no actual enforcement mechanisms (no sovereign police in Agambens terms); it must rely on colla boration from member states to enact the measures necessary to halt or sculpt epidemics. The H1N1 flu controversy is very enlightening on this question of delegation of power and partial sovereignty. When the European states both individually, and in the guise of a partial delegation-based supranational collective (the European Commission or EC) that has its own health management process, though smaller in scope than the WHO refused to enact the health policing measures that they control within their borders, they resisted the loss of sovereignty that their delegation of health surveillance to the WHO implied; they refused to suspend laws by scaling down the state of exception that the WHO materialised in declaring H1N1 pandemic. But this is not a simple matter to theorise had the European countries done what they had delegated the WHO to tell them to do, they could have used the US strategy when the pandemic fizzled and declared their own victory over influenza. Alternatively, they might have asserted the superiority of their national or regional science over that of the WHO and accused the WHO of incompetence, challenging the basis of states delegation of internal medical policing power over their own populations on scientific grounds. But instead (apparently relying on a WikiLeaked document), they resorted to a conspiracy-theory strategy and charged that transnational capital,

in the form of Big Pharma, and regional capital, in the form of Little Pharma the smaller European-market companies had also won influenza treatment or vaccination contracts had undercut the WHOs promised position of supranational neutrality. A vexing aspect of this story is the necessary, but not independent, place of science not just on a study-by-study basis, but as an enterprise that constitutes the objects (categories of person, types of disease) that creates opportunities and sets limits on the work of politics. Indebted, of course, to Foucaults (2007) general insights, I will try to show how epidemiology in particular holds the scientific meta-vision that pandemic health management relies on. After briefly explaining Agambens concept, and before I conclude with a possible extension to the idea of a double state of exception to account for reciprocal challenges to different scales of sovereignty of the EC , its member states, the WHO, and the compliant member states I will offer a brief account of influenza monitoring as it developed in relationship to the human immunodeficiency virus (HIV) and SARS as objects of global surveillance and programme development.

Epidemiology, Global Health and Permanent State of Exception

power everywhere and continuously refers and appeals to emergency as well as labouring secretly to produce it (Agamben 2000: 6)

Agamben argues sovereign power is constituted not in creating the rule of law that a police force (including health police) enacts, but rather, in having the power to suspend law, to create a state of exception. Agamben believes that this aspect of sovereignty is now a permanent feature of modernity, visibly but not only manifest as the camp, a concept he means us to take fairly literally as the spatialisation of the state of exception for transitory incarceration to be managed by the police as an emergency. In these spaces, laws cannot be broken because the rule of law has been suspended. Agamben rightly emphasises the territorial dimension of the camp; he intends to limit the concept so that we cannot vaguely or unthinkingly declare any and all moments of a permanent state of exception a camp. But he does not require a specific form of suspension of rule nor any specific topography. The Agamben fragment that opens this section is an amplifying riff on Foucault that invokes the earlier, and oft-quoted passage from Walter Benjamins 1939 Theses on the Philosophy of History, which Agamben also quotes in his text (2000: 6) The tradition of the oppressed teaches us that the state of emergency in which we live is not the exception but the rule.2 According to Agambens translators, the Italian translation of Benjamin renders emergency as exception, and while translators of other Agamben texts revert his exception back to the English emergency, I want us to focus on exception to defamiliarise health planners stark dyad quiet-state: emergency. It is important to stress the term exception to strip the concept of emergency from its imbrications in discourses of natural or divine acts, of events outside social constructions. This move requires us to ask who grants the exception, and how is it that the once- exception becomes the normal state. This is particularly important
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in considering the space-time of epidemiology, which declares not emergency but excess in the relationship between observed and expected distribution of a disease. Quite distinct from the popular understanding of epidemic as the scene of vast bodily destruction, scientists use the term epidemic to refer to a hypothetical exception to a hypothesised norm, made real. The exception is hypothetical because the proposed norm might have been incorrect, that is, there may have always been many cases of a disease, but unrecognised. The declaration of an epidemic makes that norm real because until an epidemic is declared over, there can be no reassessment of the actual normal presence of disease. Thus, from the moment an epidemic is declared, until it is declared over, the hypothesised norm functions as The Real. An epidemic demands a response, which almost certainly entails the suspension of rules, whether or not this suspension results in actually creating camps (quarantine centres, or biotechnologies that quarantine diseases within the afflicted persons body), and the apparatus of epidemiology surveillance holds open the possibility that at any moment such measures may be required. Just like riot laws and anti-terrorism measures, public health laws inscribe the extraordinary procedures to follow when diseases (or rather, diseased persons) get out of hand. Public health law might even be worse (or the paradigm for the permanent state of exception) because the implication is that the population will desire to be protected against its propensity to infect itself. There is a presumption that persons have already abdicated their sovereignty over their own bodies in the case of epidemic disease; they wish to be protected against the infected, and if infected, wish not to harm others. In the case of epidemic diseases, the general lack of territoria lised camps that are the litmus test of a permanent state of exception might suggest that I am applying what Agamben intends to be a strong concept, to a weak case. But I want to suggest instead that we consider the ease with which civil liberties disappear under the aegis of disease control, often not to be recovered even when the disease phenomenon is gone, as if having had a disease makes afflicted bodies forever suspect. I will, therefore, consider how the WHO, despite its incomplete sovereignty, is nevertheless often able to preside over the suspension of rules that are enforced at the country or regional level. While many scholars have analysed transnational capital and supranational entities concerned with development (World Bank, International Monetary Fund) and human rights (an assortment of groups from A mnesty International to various branches of the United Nations) in the post-national or post-imperial world, few have considered the status and management of global health from a critical perspective. In an analysis of the early global acquired immune deficiency syndrome (AIDS) policy, I considered the way in which the WHO had emerged as a interstitial organisation that utilised the meta-vision of epidemiology, but implemented programmes through its Health Region administrative structure inherited from the era of official colonialism (Patton 2002). The WHOs mandate is to grapple with diseases that occur on a meta-scale, or have leapt across national borders, or are syndromes, like AIDS, that are said to know no borders. But, in practical terms, a disease
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always manifests in specific individuals within some border. Pandemic management has become a post-modern, spatio- temporal paradox populations require constant surveillance because disease is potentially anywhere, virtually everywhere, but only ever actualised at some particular place at some specific time. As occurred in the case of SARS, while surveillance may in principle be politically neutral, or on behalf of the whole, mem ber states have very different ideas about how to effect pandemicquelling plans Canada managed to pull off a voluntary self-quarantine in the case of SARS, while China and Singapore elected to forcibly quarantine some of their citizens (Jacobs 2007). Vaccine the issue at stake in the EC-WHO controversy does not immediately entail medical concentration camps or quarantine practices; vaccination plans especially emergency vaccination designed to stop an immediate epidemic are a kind of deterritori alised camp. The algorithms used in clinical trials sacrifice the individual to the whole, because implementation plans specify who will get the vaccine first, in some cases because that group has lives that should be saved, in some cases because suspect bodies are perceived to be the most likely vectors to the innocent. Built on these logics, and exacerbated by the routinisation of quasi-mandatory childhood vaccination programmes, the annual (apparently routine) influenza vaccination initiates a logic of extermination that it does not need to play out because the populace usually plays out the camp logic on its own by acceding to vaccination.

SARS and the Reshaping of Regional Power

To understand what happened in the H1N1 case, we need to go back a few years to the North American winter of 2002 through spring of 2003, when a new, flu-like disease made a rapid circuit from Asia, to Canada, the US and a few European countries. Although this new disease proved not to be caused by an influenza type virus, after nearly three decades with no unusual influenza outbreaks during which global health energies had turned to grappling with pandemic AIDS, SARS reminded the planet that lowly little germs lodged in innocent sneezes could indeed become globally deadly. SARS, new forms of statistical modelling, advances in anti-influenza therapy, and the increased partici pation of new democracies and small countries around the world, quickly spurred the WHO to step up its efforts to define the point at which disease prevention measures should kick into action, and in particular, how to determine when influenza threatened to become pandemic. Taking their cue from the sub-Saharan regions success at insisting that AIDS treatment and prevention aid go in part to development of health infrastructure, the countries of the Pacific region, where so-called Avian variants originate or accelerate, viewed flu pandemic preparedness as reciprocally related to development of adequate health infrastructure. I have elsewhere written about the struggle between epidemiological understandings of AIDS as a pandemic and a style of thinking about disease that I characterised as tropical (Patton 2002). Both modes are present at the WHO, and I showed how the two different modes of understanding, representing, and coping with AIDS sometimes came together at the programme level and sometimes made it virtually impossible to conceptualise solutions. AIDS began as, and debatably remains, an exception among modern

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diseases; unlike influenza, small pox, cholera, or malaria, the diseases that had most occupied the WHO up to 1980, HIV is non contagious. It is, rather, or merely, communicable, but through routes (sex, drug use) that vary in their symbolic meaning and cultural expression. The difficulty with AIDS was both that it was a new type of disease (a retrovirus attacks the immune system itself,
Table 1: WHO Pandemic Phase Descriptions and Main Actions by Phase
Phase Description Planning and Coordination Situation Monitoring and Assessment

rendering persons far less able to fight off other diseases people generally die of these diseases rather than directly from the action of HIV) and that its control would require speaking about activities that are largely left unspoken. Unlike catching influenza, which is mainly a matter of being in the wrong place with the wrong persons, catching AIDS implied participation in socially unacceptable
Main Actions Communication Reducing the Spread of Disease

Continuity of Healthcare Provision

Phase 1 Phase 2 Phase 3

No animal influenza virus circulating among animals have been reported to cause infection in humans. An animal influenza Develop, exercise, virus circulating in and periodically domesticated or wild revise national animals is known to influenza pandemic have caused infection preparedness and in humans and is response plans. therefore considered a specific potential pandemic threat. An animal or humananimal influenza reassortant virus has caused sporadic cases or small clusters of disease in people, but has not resulted in human-tohuman transmission sufficieint to sustain community-level outbreaks.

Develop robust national surveillance systems in collaboration with national animal health authorities, and other relevant sectors.

Complete communications planning and initiate communications activities to communicate real and potential risks.

Promote beneficial Prepare the health behaviours in system to scale up. individuals for self-protection, Plan for use of pharmaceuticals and vaccines.

Phase 4 Human to human Direct and coordinate Increase surveillance. Promote and Implement rapid transmission of an rapid pandemic Monitor containment communicate pandemic contain- animal or human- animal containment activities operations. Share find- recommended ment operations and influenza reassortant in collaboration with ings with WHO and the interventions to other activities; colla virus able to sustain WHO to limit or delay international community. prevent and reduce borate with WHO and community-level the spread of infection. population and the international comm outbreaks has been individual riks. unity as necessary. verified. Phase 5 The same identified virus has caused sustained community level outbreaks in two or more countries in one WHO region. Phase 6 In addition to the critieria Provide leadership and Actively monitor and Continue providing Implement individual defined in phase 5, the coordination to multi- assess the evolving updates to general societal, and pharma- same virus has caused sectoral resources to pandemic and its public and all stake- ceutical measures. sustained community mitigate the societal impacts and miti- holders on the state level outbreaks in at and economic impacts. gation measures. of pandemic and measures least one other country to mitigate risk. in another WHO region. Post-Beak Levels of pandemic Plan and coordinate Continue surveillance Regularly update the Evaluate the effec- period influenza in most countries for additional resources to detect subsequent public and other stake- tiveness of the with adequate surveillance and capacities during waves. holders on any changes measures used to have dropped below possible future waves. to the status of the update guidelines, peak levels. pandemic. protocols, and algorithms. Post- Levels of influenza Review lessons learned Evaluate the pandemic Publicly acknowledge Conduct a thorough Pandemic activity have returned and share experiences characteristics and contributions of all evaluation of all inter- period to the levels seen for with the international situation monitoring communities and sectors ventions implemented seasonal influenza in community. and assessment tools and acknowledge the most countries with Replenish resources. for the next pandemic lessons learned; adequate surveillance. and other public incorporate lessons learned health emergencies. into communications activities and planning for the next major public health crisis.
Source: World Health Organisation.

Activate contingency plans.

Implement contingency plans for health systems at all levels.

Rest, restock resources revise plans, and rebuild essential services. Evaluate the response of the health system to the panddemic and share the lessons learned.

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acts. Thus, combating AIDS required dealing somehow with the potential for discrimination against HIV-positive persons (and against those who were soon perceived likely to have it), which meant challenging laws and cultural or religious norms. HIV is not curable although it can be managed through lifelong adherence to newly available drugs so planners at the WHO perceived a need to make the radical social changes permanent. Although debates about permanent lifestyle changes were also evident in the H1N1 pandemic period (in particular, invocations to wash ones hands and sneeze into ones elbow rather than onto ones hands), H1N1 was viewed as more appropriately contained through immediate measures like quarantine and immunisation.

Flu Fever
As 2010 opened, reporters following the influenza story had apparently forgotten about SARS and their own criticisms of the global response. The European and US press had nearly opposite scientific and political evaluations of the apparent fizzle of the opening salvo of H1N1 (which, months later, would prove to be the only salvo, although epidemiologists are intensively monitoring flu reports in case there is a second, more dramatic wave in 2011). I will not devote time to an analysis of the US media coverage (I have already done so in Patton 2011), except to note that the Americans did not choose to contest the WHOs definitions or relationships with vaccine manufacturers, but instead, implied that it was their own scientists who had pulled off the masterful halting of swine flu. The Europeans might also have applauded the WHO for implementing all the improved surveillance plans that its Health Regions had collectively formulated in the wake of SARS. As the healthiest and most human rights-oriented health region in the world, Europe stands far more often to be the loser if small countries elsewhere do not follow disease reporting and containment measures Europe more often receives m igratory diseases than it passes them on. But instead of g iving the WHO a break for failing to clearly explain its six-phase epidemic surveillance alert system, or at worst, for jumping the gun, the Cof E very publicly accused the WHO of being i nfluenced by the pharmaceutical industry. Leading the charge was Wolfgang Wodarg, a former Chair of the Sub-committee on Health of the Parliamentary Assembly of the Cof E , who had for some years been alleging that flu vaccines are highly toxic, and that the CE should create a special commission or joint agreement to protect Europeans against over-marketed and under-tested vaccinations. Influenza is known to have about a dozen major strains, and many dozens of minor strains that can cause disease from mild to fatal. Because influenza is highly mutation-prone, the strains, which originate in animals and mutate rapidly, can develop the capacity over time to jump animal species and even recombine within a species. Each flu season there are several strains active, and some of these may be the product of generations of mutation, including cross-species variants that are both avian and swine in origin. Developing annual flu vaccines is a special case for clinical trials, which ordinarily proceed glacially from animal tests suggesting toxicity and efficacy, through human trials for toxi city, then efficacy, then controlled trials in actual settings,
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ollowed by post-marketing evaluation. Most annual vaccines for f flu are a recombination of trialled formulations, and go through a shorter version of trials. When dramatic new strains are predicted, a fast turnaround trial is conducted, which uses the degree of antibody produced in subjects rather than a controlled trial to determine the efficacy in humans. In July 2009, much was made of the race against time to find a workable vaccine for the H1N1 epidemic/pandemic that had been forecast to occur alongside the typical annual flu. In the absence of a visible onslaught of flu victims, it was not complete paranoia that the Europeans exhibited in their individual and collective rejection of the H1N1 vaccine mandate. The fervour with which the WHO was attacked suggested that its member states were at extreme risk from some more powerful and sovereign entity. But the WHO is a pretty fragile inter national body it lacks any means to promulgate or enforce health-related policies or regulations, and must rely on negotiation among a wide range of partners. Even more so than the development-based supranational organisations (World Bank, International Monetary Fund), which can demonstrate success in fairly concrete terms, the WHO struggles to prove its competency. Diseases wax and wane over long periods of time and great expanses of territory, and scientists debate the extent to which the decline in a particular disease is attributable to a specific initiative, a scientific innovation, or whether the disease simply trailed off of its own accord. Nevertheless, the WHO is generally considered to have brokered the relationships that have virtually eliminated smallpox, and while HIV has proved to be extraordinarily complex on both the biological and political level, the WHO is considered the global leader in developing the multi-way relationships that seem finally to have stemmed the tide. The implication that the WHO, with its carefully managed global image, did not stand above country pressures and outside capitalist interests was potentially devastating for the organisation. It tried to manage the response with press releases that accounted for why its popular languaging of the definition of epi demic (which included the idea that a pandemic was characterised by mass death) was inaccurate with respect to the scientific definition that it used in practice. To some extent, the WHO fell prey to its own democratising efforts.3 In an effort to explain mass disease and the procedures required to stop them in ordinary terms, the WHO resorted to quite descriptive language, which was pulled down from its website and replaced with conceptually more accurate language. The longer official version of the pandemic staging scheme appeared in a chart showing the definition of each stage and the forms of response required at different levels (Table 1, p 106).

Flu Science
The dynamics of the influenza model had long been the subject of debate, and in the years following SARS, scientists had debated the correct modelling of influenza. There were several important areas of dispute among modellers What was the role of air travel in the spread of influenza? What was the longest time lag between recognition of illness and distancing strategies before

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such measures like voluntary self-quarantine of the sick, closure of schools, and public venues became ineffective strategies? What role and timing was best for offering or mandating treatments and vaccines? WHO officials have been interlocutors in these debates, though with something less than rapt attention. They knew that models could be tweaked and complexity added ad infinitum, but no model would capture the shifting conditions and requisite diplomacy involved in implementation of health i nterventions in countries that vary dramatically in social structure, cultural mores, technological capacity, and health infrastructure, not to mention changing regimes of political leadership. These obviously included revolutions, invasions, and democratisation that restructure the systems in which nations healthcare plans are crafted, but also the shifting tides of developed countries willingness to send help abroad. For example, from the Ronald Reagan era through to the present, the US has infamously tied development dollars to family planning and, especially, abortion (rather, anti-abortion) policies in recipient countries. In the context of H1N1, President Barack Obama was heavily criticised for offering TamiFlu stocks to resource-poor countries before all Americans who might need it could be assured of having it. Unlike Europe, the debates in the US concerned whether national and international health policy could be aligned to support the countrys security. Scientists debated whether it was better to use drugs or border controls in containing an emerging influenza pandemic in southeast Asia (Ferguson et al 2005) or containing pandemic influenza at the source (Longini Jr et al 2005) was the most effective means of dealing with flu, but it was the WHO and its regional offices that would have to make the combination of solutions palatable and workable on the ground. The WHO is really much like the builders who improvise as they fit the elegant and complex plans of architects and engineers to the realities of the materials and sites on which fantastic high-rise towers are built. Thus, after helping regions and countries restructure their influenza-response plans in the wake of SARS

(actually a coronovirus and not an influenza), and responding to the scientific debate about whether the WHOs systems were based on good statistical science, in August 2005, the slightly bruised global health planners offered this head-office response to criticism.
The World Health Organisation (WHO) welcomes the pandemic i nfluenza response modelling papers published in the journals Science and Nature this week. This is work done by expert scientists using two different sets of assumptions. The models provide additional information which will help WHO and public health officials in our Member States to improve pandemic influenza preparedness planning. Both papers suggest that a combination of early, targeted use of a ntiviral medicines and social distancing (measures such as cance lling mass gatherings and closing schools) can stop a pandemic, or at least slow its spread. There would be significant practical challenges to implementing such measures, but the enormous social trauma and human suffering that an influenza pandemic could inflict c reates an obligation to thoroughly explore all proposals to limit this damage. Several countries have already purchased stockpiles of antiviral drugs and WHO has taken steps to establish an international stockpile. National and international stockpiles of antiviral drugs may be an essential component of comprehensive international pandemic preparedness, that also includes vaccine development and disease surveillance. If we have a chance to reduce the scale of a pandemic with antivirals and other public health measures, the success of these interventions will depend on effective disease surveillance and early reporting in risk-prone countries. Before any stockpile can be used effectively, both must be strengthened (WHO 2005).

In this carefully phrased press release, the WHO acknowledges the value of science with its pandemic eye view, but displaces the authority of scientific detail to assert its own bureaucratic responsibility to act on behalf of the whole. 4 Scientists and health bureaucrats are mutually interdependent the modellers need the country and regional data that the WHO can conduit to them, and the WHO needs ongoing feedback on how well its response systems are likely, in principle, to work. But the question of the best vantage point for seeing pandemic

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opposes, on the one hand, scientists and supra-national health bureaucrats in a struggle for primacy in the empire of disease, and on the other, throws them together against the nation states, which reflexively seek to control the potential for epidemics through traditional policing mechanisms, within or at their borders mandatory testing, quarantine, mandatory vaccination.

Incomplete Sovereignty: A Double State of Exception?

We have already considered how subnational policing via public health law constitutes a permanent state of exception countries can and do suspend civil rights to adopt epidemic prevention measures within their borders. However, even the most antiwestern medicine countries also realise that neither religion nor political ideology prevent the spread of disease. Even the most powerful nation is powerless to convince other nations to follow suit in the case of diseases that threaten to jump across borders. No nation can compel another to police disease in their own borders, nor can they inspire concern if their counterpart is indifferent to the health of nations living on the other side of a border. Thus, it was no small feat, and politically highly significant that the WHO was able to develop a consensus to stop smallpox. This established the WHOs skill and ability to broker relationships that would enable cooperation among nations to halt disease, even though it had no policing power of its own. As I suggested above, decades and many disease outbreaks later, the WHO worked closely with member nations after SARS to considerably beef up influenza surveillance in the context of coordinated national response plans. Underlying the WHOs capacity to function in this role is the delegation to it of meta-surveillance activities and monitoring of action plans by member countries. In effect, member countries agree to endow the WHO with the ability to suspend rules globally to control disease happening outside their territorial domains; they convey sovereignty over disease to the WHO. But this is a positive fantasy. Like the negative fantasy that the WHO is merely the handmaiden of Big Pharma, it rests on the assumption that a pandemic is a natural phenomenon that requires exceptional regulation to control. Declaring a global pandemic amounts to a double suspension of rules. First, countries must relinquish their sovereignty over disease (and in essence, over their own populations) to the WHO, which has been endowed to see pandemics and determine which of the normal civil rights to circulate, to cross borders, to choose whether to be vaccinated, and so on are appropriate to suspend. But the countries must then retract their sovereignty to actually declare the state of exception within their own borders, on their own people. This process may repeat itself as the scope of a pandemic changes, as certainly has been the case with the AIDS pandemic. This form of sovereignty is incomplete because delegating parties for example, the US, which acknowledges the WHO only as a partner and occasional rogue states can and do intermittently refuse to acknowledge the WHOs position as sovereign over global disease.5 The WHOs incomplete sovereignty was threatened when the European Council (meetings of the heads of state in the European Union) and several member countries refused to accept the WHOs designation of pandemic, while countries bought far
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more influenza treatment and vaccine than would be needed. But even these countries had incomplete sovereignty over their populations there was widespread refusal of citizens to answer the call of governments that did implement pandemicstyle emergency vaccination programmes, and conspiracy websites quickly picked up on the EC s critique as support of their own positions, reinforcing their readers conviction of not only a national but a global conspiracy. Caught between their unwillingness to enact a camp that would suspend normal rules (for instance, a permanent state of exception at the national level) to carry out the WHO pandemic response plans, and their desire to nevertheless maintain the future possibility of according the WHO sovereignty over disease and suspending rules at the international level, the Europeans retracted their delegation of power to the WHO, but they could not be seen as acting politically to establish their own dominion over global disease. They needed an excuse, and accusing the WHO of imbrications in Pharma provided the perfect excuse. In May 2011, the final report of the Review Committee of the International Health Regulations assessment 2009-10 H1N1 season was released, including testimony by Big Pharma, the Developing Countries Vaccine Manufacturers Network (a non-profit international organisation promoting and monitoring manufacture of vaccines in developing countries), EC and European Union (EU) representatives, health ministers from countries around the world (including Mexico, where 2009 H1N1 was initially identified), and watched over by European health monitoring organisations. To date, there is no evidence of any collaboration between the WHO and Pharma, big or small (in fact, the WHO was very active in spreading around the vaccine orders). But that is a side issue, not only in the report, but also in our consideration of the practice of empire in the context of disease. While the old empires seem to have drifted away, their annexation strategies survive in the supranational non-government organisations that contend with new (post-colonial) nationalisms, regional consortium (EU), and corporations that act like states. While Agambens account viscerally captures the territorial implementation of the abstract structure of sovereignty, there remain different kinds of sovereignty-seeking bodies, and their modalities include the incomplete sovereignty that I have partially theorised here, that is, sovereignty that requires intermittent delegation of sovereignty by more obviously sovereign entities. This is precisely what we are able to see so clearly in the H1N1 controversy. The EC could not claim to be able to control pandemic disease in the f uture, that is, it chose not to compete with the WHO for sover eignty over disease. The EC limited its critique of the WHO by suggesting that its delegation of power had been unwarranted in the short term because of an unsavoury relationship between WHO and Big Pharma. It remains to be seen whether this will topple the wary basis of international cooperation and judgment; an analysis of the hearings documents, when they become available, will suggest how WHO will try or be allowed to regain its position of incomplete sovereignty. Equally important in the power play between the EC and the WHO are the implications of a gain or loss of sovereignty on the other countries. We must heed Agambens very serious concerns

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about the emergence of camps as a realisation of the permanent state of exception that underlies sovereignty. If the WHOs incomplete sovereignty crumbles, then what becomes of countries who lack resources to deal with global disease on their own and must rely on financial support from the rich countries? Who will influence the practices of countries that have little use for rights debates and prefer to more often and more visibly create camps to cope with disease? In founding the WHO on the same structure of sovereignty, but without supranational enforcement to secure it, countries created a very fragile pact. The chaotic and fragmented implementation of what had been

crafted (by consensus) as a uniform and thoughtful inter national plan created opportunities to locally exceed the rulesuspension that pandemic declaration outlined (the Japanese are still trying to justify their extremely aggressive airport procedures). But in addition to actually doubling the justifications of individual states hyper policing reminiscent of colonial border practices, and likely to be repeated the apparently (probably) unfounded accusation of being in bed with Pharma undermined the capacity of even a fragile consensus among states to stand firm against unfettering global capitalism and viral conspiracy t heory mongering.

Notes
1 The Council of Europe 0r CofE is a separate and older body than the European Union. Begun in the post-second world war years with the intention of unifying Europe, the body has a parliament and several councils and commissions dealing with legal, social, and rights issues. Much larger than the European Union, the CofE has no enforcement mechanisms for its proclamations and findings, whereas the much smaller EU does have the capacity to sanction member states. 2 This text is a particularly haunting one because it was written on the eve of Benjamins death in Vichy France either by murder or suicide as he fled from Germany to escape the Nazi regime. As he awaited his departure to a safer country, the French turned over Jews to the Gestapo. The text is said to have been mailed to Hannah Arendt, who gave it to Theodor Adorno, who had been a benefactor of Benjamins when both were in Germany developing the ideas that we now know as the Frankfurt School. 3 The WHO has been vexed in its efforts to identify workable means of explaining complex medical and scientific concepts to a global public, which includes scientists in developing countries, persons with little familiarity with western medicine and research, savvy Internet users and conspiracy theorists. Rather than attempting to produce information for all these different groups, the WHO has often produced information kits for communicators (usually media). Elsewhere, I have critiqued an early media kit for reporters covering the AIDS epidemic (Patton 2002). 4 Pierre Bourdieus late career work on bureaucracy and bureaucratic capital might be useful in thinking about the conflict in values between those working within the scientific field, with its values of disinterestedness, and those scientist-bureaucrats working with the WHO who must manage two demands that they act as scientists (for example, disinterested) but also that they manage bodily health on behalf of the whole. It is into this wedge between the responsibilities of scientists as such and the responsibility of scientists who work within delegated democratic spaces that the CE was to accuse the WHO of being too closely related to Pharma, that is interested (Bourdieu 2004). 5 In this case, the rogues were European, not the poster-children for rogue statehood, such as the Islamic Republic of Iran and the Democratic Peoples Republic of Korea, who have long cooperated with the WHO. Iran began to develop national health plans in concert with the WHO soon after the revolution in 1979, and North Korea joined the WHO in 1973.

(2004): The Science of Science and Reflexivity (Chicago: University of Chicago Press). Brenner, Neil (2001): The Limits to Scale? Methodological Reflections on Scalar Structuration, Progress in Human Geography, 591-614. Crosby, Alfred W (2003): Americas Forgotten Pandemic: The Influenza of 1918 (New York: Cambridge University Press). Ferguson, N M et al (2005): Strategies for Containing an Emerging Influenza Pandemic in Southeast Asia, Nature, 437 (7056), 8 September, pp 209-14. Foucault, Michel (2007): Security, Territory, Population (Lectures at the College Du France), ed M Senellart, trans G Burchell (New York: Palgrave Macmillan). Jacobs, Lesley A (2007): Rights and Quarantine during the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai and Toronto, Law & Society Review, 41(3): 511-53. Longini Jr, Ira M et al (2005): Containing Pandemic Influenza at the Source, S cience, 310 (5751), 3 August, pp 1083-87. McNeil, Donald G (2010): US Reaction to Swine Flu: Apt and Lucky, The New York Times, 2 January, p 1, accessed on 10 December. Patton, Cindy (2002): Globalising AIDS ( Minneapolis MN: University of Minnesota Press). Patton, Cindy (2011): Endemic Reporting: Calibrating the News and Normal Disease in Rohit Chopra

and Radhika Gajjala, Global Media, Culture and Identity: Theory, Cases and Approaches (London/ New York: Routledge), (forthcoming). Said, Edward (1993): Culture and Imperialism (New York: Knopf). Strong, P M (1979): Sociological Imperialism and the Profession of Medicine: A Critical Examination of the Thesis of Medical Imperialism, Social Science in Medicine, v 13 , 199-215. The Canadian Press (2010): Claims H1N1 Is a Fake Pandemic are Scientifically Wrong and Irresponsible: WHO, 14 January, Accessed 9 November from The Guardian. Tomlinson, John (1991): Cultural Imperialism (London/New York: Continuum). WHO Representative Office in Vietnam (2010): WHO Key Messages Conflict of Interest Issues, 11 January, accessed on 8 March 2010 from World Health Organisation: Western Pacific Region. World Health Organisation (nd): Current Phase of Pandemic Alert, accessed on 8 March 2010 from World Health Organisation. (2005): WHO Welcomes Pandemic Influenza Responce Modelling Papers, 3 August, accessed on 8 March 2010 from World Health Organisation, Media Centre. (2010): WHO Pandemic Descriptions and Main Actions By Phase, Figure, 18 February, accessed on 12 November 2010 from World Health Organisation.

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References
Agamben, Giorgio (2000): Means Without End: Notes on Politics (Theory Out of Bounds) (Minneapolis: University of Minnesota Press). Boseley, Sarah (2010): WHO Accused of Losing Public Confidence over Flu Pandemic, The Guardian, London, 29 March, p 12. Bourdieu, Pierre (1991): Language and Symbolic Power (New York: Polity Press).

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