SARS and International Law
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 [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. century.
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.
[1] U.S. Centers for Disease Control and Prevention, Fact Sheet: Basic Information about SARS, http://www.cdc.gov/ncidod/sars/factsheet.htm.
[2] World Health Organization, Cumulative Number of Reported Probable Cases of Severe Acute Respiratory Syndrome, http://www.who.int/csr/sarscountry/2003_04_15/en/.
[3] Id.
[4] Id.
[5] WHO, Information to Member States regarding goods and animals arriving from SARS-affected areas, Apr. 11, 2003, http://www.who.int/csr/sars/goods2003_04_10/en/.
[6] WHO, Division of Emerging and Other Communicable Diseases Surveillance and Control Strategic Plan 1996-2000, WHO/EMC/96.1, at 10.
[7] IHR, Foreword.
[8] Id. arts. 2-13.
[9] Id. arts. 14-22.
[10] Id. arts. 50-75.
[11] Id. art. 23.
[12] See David P. Fidler, International Law and Infectious Diseases 65-71 (1999).
[13] IHR, art. 1.
[14] See WHO, International Health Regulations, http://www.who.int/csr/ihr/en/.
[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.
[16] CDC, Fact Sheet: Isolation and Quarantine, http://www.cdc.gov/ncidod/sars/isolationquarantine.htm.
[17] Fidler, supra note 12, at 172-173.
[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.
[19] See WHO, supra note 5.
[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. Seesupra note 15, at 288-289. Fidler,