Contact: Stephen M. Apatow
Director of Research & Development
Humanitarian Resource Institute Legal Resource and Assistance Center
Eastern USA: (203) 668-0282  Western USA: (775) 884-4680
Internet: http://www.humanitarian.net/law
Email: s.m.apatow@humanitarian.net

INTERNATIONAL LAW, COMMUNICABLE DISEASES AND THE GEOPOLITICAL OBJECTIVE OF MINIMAL INTERFERENCE WITH WORLD TRADE AND TRAVEL

The recent controversy surrounding early reporting of Severe Acute Respiratory Syndrome (SARS) by the Chinese government is confounded by international law as defined in the International Health Regulations (IHR), that constitutes the "only international health agreement on communicable diseases that is binding on [WHO] Member States." IHR presently applies to only three infectious diseases, cholera, plague and yellow fever. [1] WHO member states have no international legal obligation under the IHR to report SARS cases to WHO or to refrain from certain trade and travel restricting measures aimed at stopping the spread of SARS. Thus, the only international agreement on infectious diseases binding on WHO member states has been irrelevant to the SARS outbreak. [2]

WHO officials and public health experts acknowledge that the IHR have historically failed to ensure the maximum security against the international spread of diseases with minimum interference with world traffic. Accurate reporting in many countries may be unlikely due to the fear of excessive measures from other countries.  In the early 90's, it is estimated that Peru lost upwards of US$ 700 million due the cholera epidemic and India US$ 1.7 billion in lost trade due to the plague outbreak in 1994. [3]

The challenge of global health governance through legally binding and "soft-law" regimes is negotiated and adopted within the mandate of multilateral institutions -- the World Health Organization (WHO), the Food and Agriculture Organization (FAO), and the Office International des Epizooties (OIE). Broad consensus must also be achieved with member states and other international organizations that include the International Air Transport Association (IATA), the International Civil Aviation Organization (ICAO), and the International Maritime Organization (IMO). Public health is no longer the prerogative of physicians and epidemiologists.  International health law, which encompasses human rights, food safety, international trade law, environmental law, war, and weapons, human reproduction, organ transplantation, as well as a wide range of biological, economic, and sociocultural determinants of health, now constitutes a core component of global communicable disease architecture. [3]

Current revisions of the IHR [4], resolution WHA55.16  "Global public health response to natural occurrence, accidental release or deliberate use of biological and chemical agents or radionuclear material that affect health," [5] encompasses no new international legal obligations.  Participation is driven by the WHO's definition of health as "a state of complete physical, mental and social well being, not merely the absence of disease or infirmity." [3]

INTERNATIONAL TRAVEL: ISOLATION AND QUARANTINE MEASURES

Recently in Japan, it was reported that the Health, Labor and Welfare Ministry will expand the list of infectious disease patients subject to legally binding measures, including hospitalization, to include people suspected of having severe acute respiratory syndrome, but who have not been diagnosed as having the disease. [6]

On 4 April 2003, the United States added SARS to it's Revised List of Quarantinable Disease (Executive Order 13295) that includes Cholera; Diptheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Hemorrhagic Fevers (Lassa, Marbug, Ebola, Crimeon-Congo, South American and others not yet isolated or named). This authority would only be used if someone posed a threat to public health and refused to cooperate with a voluntary request, providing the capacity for similar actions based on the legal authorities for isolation/quarantine. [7]

Though no international legal obligation exists for any WHO member country to share epidemiological information on disease events in their territory (except for cholera, plague and yellow fever), countries do have the legal right to infringe on civil and political rights for public health purposes. The use of isolation and quarantine by governments to stop the spread of SARS is not, therefore illegal per se under international human rights law. [2] The rights of groups can overide the rights of individuals (Siracusa Principles) (1) when used as a last resort, (2) when provided for in the law, (3) when shown to be in the legitimate public interest, (4) when found to be strictly necessary, without less intrusive or restrictive means available to achieve the same end, and (5) when not imposed arbitrarily. [8]

In the context of present international travel related risks, the US State Department: Severe Acute Respiratory Syndrome (SARS) Public Announcement (current as of Wed May 07 04:43:44 2003. ), [9] has provided the following guidance:

The CDC and the World Health Organization (WHO) are tracking SARS’ origin and method of transmission as well as determining how its spread can be contained. SARS has severely taxed health care systems in affected countries; neighboring countries have curtailed flights in and out of affected locations and blocked transfer of SARS patients for medical care. In light of the continually evolving nature of the geographic spread of SARS, American citizens should regularly consult the CDC’s website (www.cdc.gov) and the WHO’s website (www.who.int) for updates. 

"Strong efforts are being made to contain SARS. Some countries have implemented measures such as mandatory screening of incoming passengers at airports, and persons with SARS-like symptoms may be quarantined and/or sent to designated hospitals until the authorities are satisfied they do not have SARS.

Medical evacuation of SARS patients remains problematic. Securing transport and locating a destination willing to accept such patients is difficult, if not impossible. Since medical evacuation possibilities may change, family members of SARS patients may wish to consult with the nearest U.S. Embassy/Consulate General for the latest information."

References:

[1] International Health Regulations (IHR) <http://www.who.int/csr/ihr/en>
[2] SARS and International Law: David P. Fidler, American Society for International Law, April 2003. <http://www.asil.org/insights/insigh101.htm>
[3] Aginam, Obijiofor.  “International Law and Communicable Diseases.”  Bulletin of the World Health Organization 2002.  <http://www.who.int/bulletin/pdf/2002/bul-12-E-2002/80(12)946-951.pdf>
[4] Revision process of the International Health Regulations (IHR) <http://www.who.int/csr/ihr/revision/en/>
[5] Global public health response to natural occurrence, accidental release or deliberate use of biological and chemical agents or radionuclear material that affect health, WHA55.16, Agenda Item 13.15, 18 May 2002 <http://www.who.int/gb/EB_WHA/PDF/WHA55/ewha5516.pdf>.
[6] SARS suspects face forced hospitalization, Yomiuri Shimbun, The Yomiuri Shimbun, May 4, 2003.
<http://www.yomiuri.co.jp/newse/20030504wo32.htm>
[7] Executive Order: Revised List of Quarantinable Communicable Diseases, Apr 14, 2003. <http://www.cdc.gov/ncidod/sars/executiveorder040403.htm>.
[8] Bioterrorism and Public Health, The Ethics of Public Health Practice in Crisis Settings, Jennifer Leaning, M.D., S.M.H., Harvard School of Public Health, Harvard Medical School.
<http://www.mcph.org/BT/2.13.03/BTPH%20and%20Law-HCPHP%202-11-03.ppt>
[9] US State Department: Severe Acute Respiratory Syndrome (SARS) Public Announcement (current as of Wed May 07 04:43:44 2003) <http://travel.state.gov/sars_announce.html>