ANDRAŽ ZIDAR

Introduction

In a globalized world characterized by the movement of people, proliferation of risks and hazards, robust flows of trade and commerce, and the growing degradation of the environment, international health emergencies are now declared on a frequent basis. In the last two years the World Health Organization (the WHO) proclaimed a public health emergency of international concern (PHEIC) with regard to three health hazards: poliomyelitis or polio (infantile paralysis), Ebola and the Zika virus.

The recent spread of polio in Asia, Central Africa and the Middle East came as a surprise because polio was on the way of being eradicated. The WHO reacted promptly. In May 2014 the WHO Director-General declared an international health emergency and issued a list of recommendations for affected States (WHO, 2014). Another infectious disease, Ebola, spread in the post conflict countries of West Africa in the beginning of 2014. It took the WHO several months before declaring an international health emergency on 8 August 2014 (WHO, 2014). The Ebola pandemic caused more than 11.000 deaths and the WHO encountered serious criticism that its reaction was belated (see Médecins Sans Frontières, 2015). Recently, an “explosive outbreak” of the Zika virus in Brazil and other Latin American countries alarmed the health community (Tavernise, 2016). Growing evidence supports the conclusion that the Zika virus causes significant brain damage in infants (microcephaly), often leading to their subsequent death (Mlakar et al, 2016; Rubin et al, 2016, Cauchemez et al, 2016). Consequently, the WHO declared an international health emergency on 1 February 2016 (WHO, 2016), however, without listing any specific recommendations at this stage.

Leading epidemiologists and virologists predict that in the future emerging infectious diseases will become a regular occurrence that public health authorities will have to take into account (Berkley, 2016; Avšič-Županc, 2016; Howard & Fletcher, 2012). The cases mentioned above demonstrate that infectious diseases are not abstract and hypothetic dangers. They can cause massive losses in human lives and damage to human health. The challenge ahead is how to treat situations which are by their nature ‘serious, unusual or unexpected’ (WHO) as ordinary and recurring phenomena. An inherent part of this challenge is to adopt health measures compatible with the international protection of human rights.

Global Health Security and Human Rights

Clearly, what needs to be done is the enhancement of global public health security. Two main legal frameworks that provide a basis for this build-up are the right to health under of the International Covenant on Economic, Social and Cultural Rights  (ICESCR) and the WHO International Health Regulations (Regulations). Article 12 of the ICESCR requires States Parties to take steps necessary for the prevention, treatment and control of epidemic diseases (ICESCR). In addition, the Regulations set their purpose as ‘to prevent, protect against, control and provide a public health response to the international spread of disease’ (Regulations, Art. 2).

However, as the Ebola spread dramatically demonstrated, the global health system is far from being efficacious. The international normative framework cannot be a substitute for the operational core capacities of national health systems, least so in impoverished countries. High-level panels that mushroomed after the Ebola outbreak are unanimous in recommending that global health security, which includes national health systems, should be strengthened (see Ebola Assessment Panel 2015; Harvard-LSHTM Independent Panel, 2015; High-level Panel on Health Crises, 2016). One of the most pressing challenges for the international community is to create a mechanism for ensuring monitoring and accountability of States Parties under the Regulations (Farrar & Mundel, 2016).

It is surprising that the current discourse on infectious diseases is completely oblivious to the international (and domestic) protection of human rights. And yet this is a serious issue because the fight against infectious diseases presupposes putting restraints on human rights. Recent experience in the SARS and Ebola contexts demonstrates that this fight can lead to numerous violations of human rights (Reis, 2005; Al Hussein, 2014; Human Rights Watch, 2015).

The described dilemma is not something new. It corresponds to the antinomy between the demands of ‘law and order’ and respect for the ‘rule of law’, including human rights (see Zupančič, 2003). In our context we can speak of the balancing exercise between public health and human rights (see Toebes, 2015). The described antinomy means that there are two vital phenomena that constantly oppose and confirm each other. Measures of global health security need to be checked by the international human rights regime, and the protection of human rights must be part of the effective fight against infectious diseases. This dialectical dynamic prompts the global health regime to a higher, more refined level. Therefore, it is inept to speak about imaginary ‘trade-offs’ in the fight against infectious diseases. We need to think, instead, about accommodating global health security and human rights.

Emergency models and their compatibility

The Regulations stipulate that they should be implemented ‘with full respect for the dignity, human rights and fundamental freedoms of persons’ (Art. 3 (1)). This is one of the few provisions in the Regulations that refer to human rights. A subsequent reference to the Charter of the United Nations (Art. 3 (2)) requires that implementation of the regulations be guided by the Charter. As several provisions in the Charter emphasize a need for the protection of human rights (see Preamble and Arts. 1, 55 and 56), the Charter incorporates a wide corpus juris of human rights standards adopted in the UN framework and further developed by UN expert bodies. On the basis of the reference to the Charter, the Regulations integrate these standards, notably from the Universal Declaration for Human Rights and the International Covenant on Civil and Political Rights (ICCPR), in the normative system for the fight against infectious diseases (Zidar, 2015: 510).

This international human rights regime foresees situations of instability in which public threats affect the protection of human rights. Such situations can be referred to as ‘risk within rights’ (Murphy & Whitty, 2009: 232-7). The international human rights law regime envisages two models that allow for incursions in human rights. First, in some circumstances the enjoyment of a human right may be limited. This model can be labelled as the ‘limitations model’. Second, in emergency situations, States may derogate from their obligations under international human rights documents (see Mégret, 2009: 23-5, 28-30). This model is more robust and can be called the ‘derogations model’. The main difference between the two models is that the limitations model shrinks the framework of protection of human rights from the full to a limited scope, while the derogations model temporarily suspends the enjoyment of rights, except core rights that may never be derogated from.

The decision-making process in the derogations model and limitations models is essentially monocentric. Monocentric tasks require a decision or a set of sequential binary decisions in which a decision-maker opts for one or another solution (Fuller, 1978: 404-5). In the derogations model, there is a decision whether the social instability amounts to the state of emergency and, if the answer is affirmative, which rights are suspended during the emergency. Similarly, the limitations model pursues monocentric decisions in a sequence: (i) is there a ground justifying limitations?; (ii) is there a pressing public need?; (iii) is there a legitimate aim?; and (iv) is the limitation proportionate to that aim?

On the other hand, the Regulations define the international health emergency in an open-ended way. There are three main components in the understanding of the PHEIC, which makes decision-making a very complex process: (i) the concept of public health risk; (ii) implications for public health beyond the affected State’s borders; and (iii) a coordinated international response led by the WHO (Regulations, Art. 1). One of the main novelties of the revised Regulations is that they rely on the ‘all hazards’ approach, which extends the reach of health risks beyond infectious diseases to include other health hazards such as biological, chemical and radio-nuclear hazards (Fidler & Gostin, 2007: 137-8, 154-5).

All three components of the international health emergency are mutable and elusive. The ‘all hazards’ approach comprises various health risks, which can change continuously. The fact that we are speaking of an international health emergency implies that various countries and regions may be affected at different times or at different intensities. Therefore, in the context of a particular health hazard, different risk assessment phases may apply to different countries and regions. Correspondingly, the international response coordinated and led by the WHO may also vary with regard to the intensity of health risks, their temporal dynamic and geographical implications.

All these elements make a decision-making on international health emergency a polycentric exercise. Polycentric tasks require ‘the balancing of a large number of variable items against all others.’ (Polanyi, 1951: 191.) With regard to public health governance, Fidler and Gostin speak of the emergence of ‘unstructured plurality’, which comprises multiplying actors, initiatives, organisations and financial resources (Fidler & Gostin, 2007: 236-7, 250-2). Polycentric decision-making is a process that implies many variables that are constantly shifting and are, as such, indeterminate and elusive.

If we compare the emergency framework under the human rights model and the PHEIC framework under the WHO it seems that the flexible, polycentric character of the international health emergency scheme actually accommodates both monocentric human rights models – the limitations model and the derogations model – depending on the particular health pandemic and the situation in a particular country or region. The mechanism under the Regulations therefore allows for an application of different approaches to different heath crises. This in turn means that (i) international health emergencies are compatible with emergency human rights models and that (ii) the Regulations must comply with them. The normative system for the fight against infectious diseases is not a self-contingent system isolated from the protection of human rights.

Protection of human rights under the Regulations

There is one important and distinct quality with regard to the protection of human rights under the Regulations: the international human rights framework requires that every measure infringing upon rights be based on certain criteria, such as a compelling public interest (Fidler, 2005: 382). The Regulations necessitate that health measures be based on scientific principles and the available scientific evidence (Arts. 17(c) and 34(2)). This is important because the reliance on professional criteria and verifiable data significantly reduces a possibility for arbitrary decisions by the law enforcement personnel.

Another unique feature of the Regulations is that they make a distinction between two contexts of application of human rights: (i) human rights norms that apply to persons in general (Arts. 3(1), 18, 45); and (ii) human rights norms that apply to travellers (Arts. 23, 30-32). The Regulations understand ‘traveller’ as a ‘natural person undertaking an international voyage’ (Art. 1(1)). This reflects the traditional aim of the Regulations (and preceding legal instruments) to regulate international traffic (and trade) to prevent the spread of infectious diseases (see Gostin, 2014: 183-4, 196). However, the above distinction is functional rather than conceptual. In terms of the protection of rights, there are no differences between the context that applies to travellers and the one that applies to persons.

The measures that the WHO Director-General can issue as temporary recommendations in the context of PHEIC (Regulations, Art. 18(1)) primarily fall within the limitations model of the regime under the ICCPR. These measures predominantly interfere with three forms of human rights in the ICCPR: the right to privacy (Article 17), the right to liberty (Article 9), and the freedom of movement (Article 12). It is useful to recall that incursions in these rights must fulfil certain criteria of the limitations model such as the balancing exercise of proportionality between the degree of the interference and the intended purpose. In addition to the above-mentioned rights, the Regulations devise a specific procedural regime under which travellers may be placed under mandatory public health supervision.

The health measures that touch upon the right to privacy (Regulations, Arts. 18(1) and 45(1)) are: (i) the review of travel history of travellers in affected areas; (ii) the review of proof of medical examination and laboratory analysis (iii) the tracing of contacts of suspect or affected persons; (iv) data collected must be kept confidential and processed anonymously; (v) the requirement to undergo medical examination, which may include physical examination; and (vi) the requirement of vaccination or other prophylaxis (i.e. medical preventative measures).

Health measures that have an impact on the right to liberty (Regulations, Art. 18(1)) include three levels: (i) the placement of suspect persons under public health observation; (ii) the imposition of a quarantine or other similar health measures for suspect persons; and (iii) the submission of affected persons to isolation and treatment where necessary.

The Regulations envisage several health measures, on the basis of WHO recommendations to States Parties, which can affect the freedom of movement (Art. 18(1)). States Parties can: (i) refuse entry of suspect and affected persons; (ii) refuse entry of unaffected persons to affected areas; and (iii) implement exit screening and/or restrictions on persons from affected areas.

Finally, the Regulations articulate several measures that apply specifically to travellers. These measures can be subsumed in two sets. The first set pertains to the review of an individual’s information connected to travelling. A State may review: (i) information concerning the planned destination; (ii) information concerning the individual’s itinerary; and (iii) the individual’s health documents if required under the Regulations (Art. 23(1)(a)(i) and (ii)). However, much more interesting is another State prerogative that the Regulations envisage. Pursuant to evidence obtained through such a review, or through other means, States can trigger an examination procedure of a suspect or already affected traveller. In this case, if there is evidence of an imminent public health risk, the traveller is not allowed to walk away. At this point, the State may compel the traveller to undergo the following measures: (a) the least invasive and intrusive medical examination to achieve the public health objective; (b) vaccination or other prophylaxis; or (c) additional health measures that prevent or control of the spread of disease, including isolation, quarantine or public health observation (Regulations, Art. 31(2)).

The above listed health measures and procedures inherent in the Regulations must comply with all relevant international human rights standards. In general, all measures must respect various components of human dignity, in particular the freedom from torture and other forms of ill-treatment (including medical experimentation without a free consent) and humane treatment of detained persons, as well as the right to equality and non-discrimination. Specific health measures must comply with corresponding human rights. Thus, the review of personal information, the treatment and protection of data and the requirement to undergo medical examination or vaccination must be compatible with the right to privacy. In addition, public health observation, quarantine and isolation must correspond to the standards of the right to liberty, which includes due process rights such as the right to be informed of the reasons for detention; the right to bring proceedings before the court or other competent body; the right to a counsel or a human rights defender; the right to communicate with family and the outside world; and the right to humane conditions of detention. Measures that limit entry to, exit from and movement within a State have to fulfil requirements of the freedom of movement. Finally, the procedural framework that applies to travellers must also respect all relevant due process in the context of the protection of the right to liberty.

Conclusion

In the era of growing infectious diseases it is of the outmost importance that the international community enhances global health capacity through international institutions and mechanisms, as well as through the strengthening of national health systems. Only a tight, robust and responsive network of health capacities at all levels will succeed in containing the spread of future infectious diseases. As this issue is on the agenda of the World Health Assembly the WHO, States and other actors could agree on a necessary reform of the global health system.

At the same time, however, the international community must not lose sight of the protection of human rights. The build-up of global health security should go hand in hand with the strengthening of the human rights capacities in health and law enforcement sectors, internationally and domestically. In concrete terms this means that health measures issued under the Regulations need to be adopted and implemented with the observance of human rights in mind (Al Hussein, 2014). Human rights requirements must be incorporated in contingency plans for infectious diseases at national and local levels. In addition, health and law enforcement personnel need to be trained, on a regular basis to effectuate health measures, policies and protocols in accordance with human rights.  The pressure of emergency coupled with ignorance is a fertile ground for potential human rights violations. Fortunately, the international community has knowledge and still some time to enhance global health and human rights capacities. Let’s hope the political resolve and wisdom will emerge too.

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MEET THE AUTHOR

Dr. Andraž Zidar is the Programme Director of the European Master’s Degree in Human Rights and Democratisation at EIUC in Venice. Author’s views are expressed in his personal capacity.

This blog is an updated and abridged version of the article ‘WHO International Health Regulations: From Allusions to Inclusion’ 19 (2015) The International Journal of Human Rights, pp. 505-526.