The outbreak of a new infectious disease-Severe Acute
Respiratory Syndrome (SARS)-in Asia and its spread
to many countries in the Asian region and beyond raise
many public health and policy questions and challenges
for governments, international organizations, and
non-governmental organizations. The SARS outbreak
also implicates international law, and this Insight
briefly discusses three areas of international law
affected by SARS and the efforts to contain the spread
of the disease.
Basic Information on the SARS Epidemic
SARS is an atypical pneumonia that public health
experts presently believe is caused by a previously
unrecognized coronavirus. According to the U.S. Centers
for Disease Control and Prevention (CDC), "[p]ublic
health experts think that SARS is spread by close
contact between people. SARS is most likely spread
when someone sick with the disease coughs droplets
into the air and someone else breathes them in. It
is possible that SARS also can spread more broadly
through the air or from touching objects that have
become contaminated." [1]
Since its initial recognition in Hong Kong and China
in February 2003, as of April 15, 2003, 3235 probable
SARS cases have been reported in twenty-four countries,
according to the World Health Organization (WHO). [2] The countries with the largest
number of probable SARS cases, as of April 15, 2003,
were China (1418), Hong Kong Special Administrative
Region (1232), United States (193), Singapore (162),
Canada (100), Vietnam (63), and Taiwan (23).
[3] WHO reports that each of these countries
also has local chain(s) of transmission through which
SARS may be spreading. [4] SARS has caused, as of April
15, 2003, 154 deaths worldwide, a 4.8% fatality rate.
In addition to the public health problems SARS has
created, the epidemic has also caused significant
economic damage in countries affected by it, especially
those in the Asian region. The airline and tourist
industries have been adversely affected by the SARS
outbreak, and WHO has responded to concerns about
possible trade restrictions being implemented against
goods and animals exported from SARS-afflicted areas. [5]
WHO's International Health Regulations
The SARS outbreak implicates the International Health
Regulations (IHR). The IHR were promulgated by WHO
under Article 21 of its Constitution in 1951 and,
according to WHO, constitute the "only international
health agreement on communicable diseases that is
binding on [WHO] Member States."
[6] The purpose of the IHR "is to ensure the
maximum security against the international spread
of diseases with a minimum interference with world
traffic."
[7] To achieve maximum security against the international
spread of diseases, the IHR establish a global surveillance
system for diseases subject to the IHR,
[8] require certain types of health-related capabilities
at ports and airports,
[9] and set out disease specific provisions for
the covered diseases.
[10] To achieve minimum interference with world
trade and travel, the IHR, among other things, set
out the most restrictive health measures that a WHO
member state may take to protect its territory against
the diseases subject to the IHR.
[11]
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.
[12] One of the leading reasons for the failure
of the IHR is that the Regulations only apply to a
small number of diseases. Since the eradication of
smallpox at the end of the 1970s, the IHR have applied
to only three infectious diseases-cholera, plague,
and yellow fever. [13] The IHR do not apply to new
infectious diseases that have emerged, such as HIV/AIDS,
or are now emerging, such as SARS. 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.
In the mid-1990s, WHO began the process of revising
the IHR to address, among other things, the narrow
disease-specific scope of the Regulations. WHO's objective
is to make the IHR more relevant for the infectious
disease threats faced by its member states in the
21st century.
[14] Although the final structure and substance
of the revised IHR have not been determined, [15] the SARS epidemic may encourage WHO member states to accept
a more robust international legal framework for global
infectious disease control than has existed historically.
Public Health Measures to Stop the Spread of SARS
and Infringements on Civil and Political Rights
A number of countries affected by the SARS epidemics
have resorted to voluntary and compulsory isolation
and quarantine measures as part of the effort to stop
the spread of SARS. According to the CDC, isolation
and quarantine "are common practices in public health
and both aim to control exposure to infected or potentially
infected individuals. . . . The two strategies differ
in that isolation applies to people who are known
to have an illness and quarantine applies to those
who have been exposed to an illness but who may or
may not become infected." [16] Isolation and quarantine infringe, however, on civil and political
rights recognized in international law, such as freedom
of movement and the right to liberty.
International law on human rights has long recognized
that governments may infringe on civil and political
rights for public health purposes.
[17] 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.
Governments must, however, fulfill certain conditions
before interference with a civil or political right
on public health grounds survives scrutiny under international
law. Public health measures that infringe on civil
and political rights must (1) be prescribed by law;
(2) be applied in a non-discriminatory manner; (3)
relate to a compelling public interest in the form
of a significant infectious disease risk to the public's
health; and (4) be necessary to achieve the protection
of the public, meaning that the measure must be (a)
based on scientific and public health information
and principles; (b) proportional in its impact on
individual rights to the infectious disease threat
posed; and (c) the least restrictive measure possible
to achieve protection against the infectious disease
risk.
[18]
Most national governments have enacted public health
statutes that authorize isolation and quarantine as
measures to control infectious diseases, even if many
of these statutes are quite old and have not been
widely used in recent decades. Because public health
experts believe SARS is contagious and can be transmitted
through the air from person to person, isolation and
quarantine measures appear to (i) relate to a significant
infectious disease threat; (ii) be based on the best
available scientific and public health information;
and (iii) be proportional in impact on individual
rights to the serious public health threat SARS and
its unchecked spread poses. Further, the lack of effective
diagnostic technologies, treatment options for infected
persons, or vaccine for prevention purposes suggests
that isolation and quarantine measures may be the
least restrictive measures currently possible to achieve
protection against the spread of SARS.
Not all isolation and quarantine measures enacted,
or that could be enacted, to deal with SARS are necessarily
permissible under international human rights law.
The main point is that responses to SARS should be
reviewed under international human rights law, especially
the obligation not to discriminate on any grounds
in the application of SARS control measures.
Principles of State Responsibility and China's
Behavior in the SARS Epidemic
Many public health officials have criticized the
secretive and non-cooperative manner in which government
of China responded to the SARS outbreak. Experts believe
that China's reluctance to cooperate and to share
information on unusual disease events in Guangdong
province, noticed as early as November 2002, and on
the SARS outbreak identified in mid-February contributed
to the regional and global spread of the new disease.
These arguments raise the question whether China's
behavior creates any responsibility for it under international
law.
According to the draft Articles on Responsibility
of States for International Wrongful Acts, "[e]very
internationally wrongful act of a State entails the
international responsibility of that State" (Article
1). China's reluctance to share epidemiological information
on disease events in territory under its control did
not, however, constitute an internationally wrongful
act because such reluctance did not breach any international
legal obligation China was under. As indicated earlier,
China's international legal obligations under the
IHR are to report outbreaks of cholera, plague, and
yellow fever. China is under no other international
legal obligation to report other disease events or
outbreaks to WHO or other states. China's reluctance
to cooperate with public health officials from WHO
and other governments may have made the public health
threat from SARS worse, but such behavior does not
appear to trigger state responsibility under international
law.
Other Potential International Legal Implications
SARS may have other international legal implications
that, in time, might become more prominent that will
only be mentioned briefly here: (1) the application
of principles of international trade law found in
the General Agreement on Tariffs and Trade (Article
XX(b)) and the Agreement on the Application of Sanitary
and Phytosanitary Measures (primarily, principles
requiring scientific evidence supporting trade-restricting
health measures and principles barring measures that
are unjustifiably discriminatory or disguised restrictions
on international trade); [19] and (2) intellectual property
issues connected with the development by private enterprises
of diagnostic technologies, anti-viral therapies,
or vaccines for purposes of dealing with SARS. [20]
About the Author:
David P. Fidler is Professor of Law and Ira C. Batman
Faculty Fellow at Indiana University School of Law,
Bloomington.
[15] For a critique of the IHR revision proposals
from WHO, see David P. Fidler, Emerging Trends
in International Law Concerning Global Infectious
Disease Control, 9 Emerging Infectious Diseases
285, 286-288 (Mar. 2003), at http://www.cdc.gov/ncidod/EID/vol9no3/02-0336.htm.
[18] These disciplines represent the application
of the Siracusa Principles on the Limitation and Derogation
of Provisions in the International Covenant on Civil
and Political Rights (UN Doc. E/CN.4/1984/4) to the
context of infectious disease control.
[20] Tension between protecting intellectual property
rights on pharmaceutical products and access to drugs
and medicines has arisen dramatically in the context
of the HIV/AIDS pandemic. See Fidler, supra
note 15, at 288-289.
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