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Abstract
As a response to an increasing threat of infectious diseases in the globalised world (e.g. SARS, H1N1 influenza, Ebola, MERS, Poliovirus), the World Health Organization adopted a reinvigorated version of the International Health Regulations in 2005. The regulations empower the WHO Director-General to proclaim a public health emergency of international concern and issue temporary recommendations of health measures to states parties. However, although the regulations and related health measures inevitably touch upon human rights of affected individuals, the regulations contain but a few allusions to the international human rights framework. The aim of this article is to include the international human rights regime in the system for the fight against infectious diseases under the regulations.
Acknowledgements
The author wishes to thank Chanu Peiris for her assistance in the course of preparing this article as well as Robert McCorquodale, the editors of the special edition and an anonymous reviewer for their useful suggestions.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Andraž Zidar is the Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law and a Visiting Lecturer in International Law and International Humanitarian Law at Regent's University London. He is the author and co-editor of three books and numerous articles or book chapters on human rights, international law, diplomacy and international relations.
Notes
1 Margaret Chan, ‘Message from the Director General’, in World Health Report 2007: A Safer Future: Global Public Health Security in the 21st Century (Geneva: World Health Organization, 2007), vi–vii.
2 At present, catastrophic scenarios feature in movies such as ‘Outbreak’ (1995) and ‘Contagion’ (2011) (see http://www.imdb.com). These scenarios, which are based on scientific parameters, are not unlikely to occur in the real world.
3 Lawrence Gostin, Global Health Law (Cambridge, MA: Harvard University Press, 2014), 35.
4 Mary Wheelan, Negotiating the International Health Regulations, Global Health Programme Working Paper No. 1 (Geneva: The Graduate Institute, 2008), 5–6. The International Health Regulations (IHR) were adopted by resolution WHA58.3 at the Fifty-eighth World Health Assembly on 23 May 2005. They came into force on 15 June 2007 (see WHO, International Health Regulations (Geneva: World Health Organization, 2008), 1). The regulations were not the first legal instrument against infectious diseases. There is a long tradition of international law-making on such instruments and the previous version of the regulations dated back to 1969. For more on the regulations, see Gostin, Global Health Law, 177–204; and David P. Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’, Chinese Journal of International Law 4 (2005): 325–92.
5 Gostin, Global Health Law, 178.
6 WHO, Implementation of the International Health Regulations (2005), Report of the Review Committee on the Functioning of the International Health Regulations (2005) in relation to Pandemic (H1N1) 2009, 5 May 2011, A64/10, 12.
7 See WHO, ‘Ebola Situation Report’, 21 January 2015, http://www.who.int/csr/disease/ebola/situation-reports/en/.
8 See Lawrence O. Gostin, ‘Ebola: Towards an International Health Systems Fund’, The Lancet, 4 September 2014, 1–3.
9 See UNSC, Resolution 2177 (2014), 18 September 2014.
10 See Gian Luca Burci and Jakob Quirin, ‘Ebola, WHO, and the United Nations: Convergence of Global Public Health and International Peace and Security’, ASIL Insight 18, no. 25 (2014): http://www.asil.org/insights/volume/18/issue/25/ebola-who-and-united-nations-convergence-global-public-health-and; Louis Balmond, ‘Le Conseil de sécurité et la crise d'Ebola: entre gestion de la paix et pilotage de la gouvernance globale’, QIL, no. 10 (2014): 5–25; and Gian Luca Burci, ‘Ebola, the Security Council and the Securitization of Public Health’, QIL, no. 10 (2014): 27–39.
11 See WHO, World Health Report 2007, 34–67. According to the WHO report, global public health security means proactive and reactive activities ‘to minimize vulnerability to acute public health events that endanger the collective health of populations living across geographical regions and international boundaries'. It includes the strengthening of international and national public health systems (ibid., ix, 57).
12 The protection of human rights was one of the important issues during negotiations on the regulations. However, agreed provisions did not go beyond general references to human rights (cf. Wheelan, Negotiating the International Health Regulations, 9). Fidler suggests that this solution reflects the traditional attitude of the WHO of being reluctant to confront member states on human rights protection for fear of losing their cooperation on important public health matters (David P. Fidler, International Law and Infectious Diseases (Oxford: Clarendon Press, 1999), 219).
13 WHO, World Health Report 2007, ix.
14 The current Director-General is Margaret Chan.
15 See, for example, Jan Klabbers, An Introduction to Institutional Law (Cambridge: Cambridge University Press, 2009), 315–17; and Stefan Elbe, Security and Global Health (Cambridge: Polity Press, 2010), 59–60. In comparative terms, this authority is similar to the executive prerogative of heads of state or government to proclaim a state of emergency. See Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006); and Jaime Oraá, Human Rights in States of Emergency in International Law (Oxford: Clarendon Press, 1992).
16 IHR, Art. 12 (1).
17 For more details about this procedure see IHR, Arts 12, 48 and 49.
18 This decision-making process is part of an elaborate and precise algorithm contained in Annex 2 of the regulations (‘Decision instrument for the assessment and notification of events that may constitute a public health emergency of international concern’). It includes consideration of three respective events that can lead to the international health emergency: (i) an infection caused by smallpox, poliomyelitis, a new subtype of human influenza or SARS; (ii) any event of potential international public health concern, including those of unknown causes or sources; and (iii) an infection due to cholera, pneumonic plague, yellow fever, viral haemorrhagic fevers, West Nile fever and other comparable diseases.
19 IHR, Art. 12 (4).
20 Procedures on the determination of the PHEIC and issuance of temporary recommendations are based on IHR Article 49 and thus very similar. In practice, decisions on the PHEIC and temporary recommendations usually make part of the same decision-making process (see below notes 63 and 64).
21 IHR, Art. 49 (6).
22 Cf. David P. Fidler and Lawrence O. Gostin, ‘The New International Health Regulations: An Historic Development for International Law and Public Health’, The Journal of Law, Medicine & Ethics 34 (2006).
23 See IHR, Art. 12(4).
24 IHR, Art. 3(1).
25 On moral justifications of the international human rights regime see Samantha Besson, ‘Justifications’, in International Human Rights Law, ed. Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (Oxford: Oxford University Press, 2014), 39–41. The most important international legal instruments are the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR) and the African Charter on Human and People's Rights (ACHPR).
26 Thérèse Murphy, Health and Human Rights (Oxford and Portland: Hart Publishing, 2014), 73.
27 The most illustrative document on this point is the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, Annex to the document of the UN Commission for Human Rights, 28 September 1984, E.CN.4/1985/4. These are non-binding principles prepared by a group of human rights experts at the meeting in Siracusa, Italy, from 30 April to 4 May 1984. Although the Siracusa Principles do not represent a formal source of international law, they are frequently referred to by international organs and represent an authoritative text on standards for limitations and derogations of rights under the ICCPR.
28 Frédéric Mégret, ‘Nature of Obligations’, in International Human Rights Law, ed. Moeckli, Shah, and Sivakumaran, 110.
29 Ibid.
30 UDHR, Art. 29(2). The ICESCR likewise includes the limitations model in Article 4, albeit in slightly different terms.
31 See ICCPR, Arts 22(2) and 29(2).
32 See above note 27.
33 Siracusa Principles, para. 25.
34 Ibid.
35 Mégret, ‘Nature of Obligations’, 111.
36 Siracusa Principles, para. 10.
37 Mégret, ‘Nature of Obligations’, 112.
38 ICCPR, Art. 4(1); and Siracusa Principles, para. 39.
39 Ibid.
40 See David P. Fidler and Lawrence Gostin, Biosecurity in the Global Age (Stanford, CA: Stanford University Press, 2008), 7–8; and Stefan Elbe, Virus Alert: Security, Governmentality, and the AIDS Pandemic (New York: Columbia University Press, 2009), 1–26.
41 Alex de Waal, ‘Militarizing Global Health’, Boston Review (11 November 2014), http://www.bostonreview.net/world/alex-de-waal-militarizing-global-health-ebola.
42 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein: Engel, 1993), 79. See also Human Rights Committee (HRC), General Comment No. 29: States of Emergency (Article 4), 31 August 2001, CCPR/C/21/Rev.1/Add.11, para. 5.
43 See Nowak, CCPR Commentary, 78–9; and Siracusa Principles, para. 39.
44 IHR, Art. 1(1).
45 WHO, ‘IHR Procedures Concerning Public Health Emergencies of International Concern (PHEIC)’, http://www.who.int/ihr/procedures/pheic/en/.
46 Nevertheless, the assessment on whether the exigencies of the situation require derogation from a certain right is subject to the principle of proportionality (see General Comment No. 29, para. 4).
47 Pursuant to Art. 4(2) of ICCPR, the non-derogable rights are: the right to life; freedom from torture and other forms ill-treatment; freedom from slavery, slave trade and servitude; right not to be imprisoned on the basis of a contractual obligation; the principle of legality; the right to be recognised as a person before the law; and freedom of thought, conscience and religion. To these, the HRC added certain humanitarian law or peremptory norms, the principle of non-discrimination of protected categories (race, colour, sex, language, religion or social origin), as well as certain aspects of the procedural and judicial guarantees (see General Comment No. 29, paras 8, 11–15. See also Siracusa Principles, paras 58–9, 67–70). For non-derogable rights in regional contexts see ECHR, Art. 15 and ACHR, Art. 27.
48 Siracusa Principles, paras 61, 64; and General Comment No. 29, para. 16.
49 ICCPR, Art. 4(1), Siracusa Principles, paras 51–7; and General Comment No. 29, para. 2.
50 General Comment No. 29, para. 1.
51 Cf. Mégret, ‘Nature of Obligations’, 113; and Siracusa Principles, paras 44–7, 71–6. It is worrying that states that adopted derogation measures in the context of the current Ebola outbreak have not communicated these derogations to the UN Secretary-General (see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en).
52 ICCPR, Art. 4(3), Siracusa Principles, paras 51–7; and General Comment No. 29, para. 17.
53 It was Lon L. Fuller who introduced – on the basis of Michael Polanyi's work – the distinction between monocentric and polycentric decision-making in legal theory. Although Fuller does not provide a precise definition of monocentricity, it can be deduced that it involves judicial decision-making on the basis of whether one wins the case or not, or whether one's right is recognised, and other decisions on the basis of dichotomy between positive and negative (see Lon L. Fuller, ‘Adjudication and the Rule of Law’, American Society of International Law Proceedings 54 (1960): 2–4, 5–6; and Lon L. Fuller, ‘The Forms and Limits of Adjudication’, Harvard Law Review 92 (1978): 404–5).
54 See above note 44.
55 Gostin, Global Health Law, 185; Fidler, ‘From International Sanitary Conventions to Global Health Security', 351, 358, 365–6; and Fidler and Gostin, Biosecurity in a Global Age, 137–8, 154–5. The WHO subsequently urged member states to integrate an ‘all-hazards’ approach into their health emergency and disaster risk programmes with the WHA Resolution 64.10, adopted on 24 May 2011.
56 Gostin, Global Health Law, 185.
57 Cf. ibid.
58 Michael Polanyi, The Logic of Liberty: Reflections and Rejoinders (Chicago: Chicago University Press, 1951), 191.
59 Fuller, ‘Forms and Limits of Adjudication', 397.
60 Fidler and Gostin, Biosecurity in the Global Age, 236–7, 250–2; and Fidler, ‘From International Sanitary Conventions to Global Health Security', 387.
61 On the fluidity of territorial borders with regard to infectious diseases see Daniel Bethlehem, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’, European Journal of International Law 25 (2014): 16–17.
62 WHO, ‘Swine Influenza', 25 April 2009, http://www.who.int/mediacentre/news/statements/2009/h1n1_20090425/en/.
63 See WHO, ‘WHO Statement on the Meeting of the International Health Regulations Emergency Committee concerning the International Spread of Wild Poliovirus’, 5 May 2014, http://www.who.int/mediacentre/news/statements/2014/polio-20140505/en/.
64 See WHO, ‘WHO Statement on the Meeting of the International Health Regulations Emergency Committee Regarding the 2014 Ebola Outbreak in West Africa’, 8 August 2014, http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/. The Director-General and the Emergency Committee are closely surveying the spread of Middle East respiratory syndrome coronavirus (MERS-CoV). However, the Director-General has not yet declared it to be a PHEIC (see WHO, ‘WHO Statement on the Seventh Meeting of the IHR Emergency Committee regarding MERS-CoV’, 1 October 2014, http://www.who.int/mediacentre/news/statements/2014/7th-mers-emergency-committee/en/).
65 For WHO updates regarding the swine influenza see http://www.who.int/csr/disease/swineflu/updates/en/. For a list of countries declaring national emergencies see James G. Hodge, ‘Global Legal Triage in Response to the 2009 H1N1 Outbreak’, Minnesota Journal of Law, Science & Technology 11 (2010): 612–23.
66 See updates under WHO, ‘Swine Influenza’.
67 ‘WHO Statement on the Meeting of the International Health Regulations Emergency Committee concerning the International Spread of Wild Poliovirus’ and ‘WHO Statement on the Meeting of the International Health Regulations Emergency Committee Regarding the 2014 Ebola Outbreak in West Africa’.
68 IHR, Art. 3(3).
69 IHR, Art. 3(1).
70 See IHR, Arts 3(4) and 42.
71 This obligation is derived from the norms on the responsibility of international organisations. See Draft Articles on the Responsibility of International Organizations (DARIO), adopted by the International Law Commission at its sixty-third session, in 2011, and submitted to the General Assembly as a part of the commission's report covering the work of that session (A/66/10, para. 87). In particular see DARIO Articles 3–6, 10 and 17. DARIO is a ‘soft law’ instrument, not legally binding for international organisations. Nevertheless, many of its provisions reflect international customary law and the relevance of other norms will be tested in practice by states, international organisations, courts and other actors in international law.
72 There is an emerging view, which is still subject to a wider acceptance, that international organisations are responsible for decisions they adopt, including the respect for human rights. Article 17(1) of DARIO prescribes the responsibility of an international organisation for acts of its members following its binding decision while Article 17(2) identifies such a responsibility following a (non-binding) authorisation (see Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford: Oxford University Press, 2011), 21–3, 49, 53; Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt, eds, Accountability for Human Rights Violations by International Organisations (Antwerp: Intersentia, 2010); and August Reinisch, ‘The Challenging International Legal Framework for Dealing with Non-State Actors’, in Non-State Actors and Human Rights, ed. Philip Alston (Oxford: Oxford University Press, 2005), 40, 46).
73 IHR Article 3(2) likewise refers to the constitution of the WHO.
74 See Preamble and Articles 1, 55 and 56 of the UN Charter. Notably, Article 55 stipulates that the UN shall promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.
75 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (Cambridge: Cambridge University Press, 2013), 147–8.
76 Ibid., 20–2 and 62–3; Philip Alston and Ryan Goodman, International Human Rights (Oxford: Oxford University Press, 2013), 142; and Ed Bates, ‘History', in International Human Rights Law, ed. Moeckli, Shah, and Sivakumaran, 30–2.
77 See Alston and Goodman, International Human Rights, 158–62.
78 Carlos Fernández De Casadevante Romani, International Law of Victims (Heidelberg: Springer, 2012), 123; and Anne F. Bayefsky, The UN Human Rights Treaty System: Universality at the Crossroads (The Hague: Kluwer Law International, 2001), 5, 99, 168.
79 Fidler, ‘From International Sanitary Conventions to Global Health Security', 382.
80 See IHR, Arts 17(c) and 43(2). The regulations define scientific principles as ‘the accepted fundamental laws and facts of nature known through the method of science’ and scientific evidence as ‘information furnishing a level of proof based on the established and accepted methods of science' (IHR, Art. 1(1)). However, it was not until late nineteenth century that scientific evidence prevailed as a criterion for the administration of public health measures, on the basis of ground-breaking scientific discoveries about microbes (see Fidler, International Law and Infectious Diseases, 21 et seq., 217–18).
81 See IHR, Arts 3(1), 18, 45.
82 See IHR, Arts 23, 30–2.
83 IHR, Art. 1(1).
84 See Gostin, Global Health Law, 183–4, 196.
85 We can exclude such an interpretation with a reference to Article 3(1), which spells out a principle that the implementation of the regulations have to be in ‘full respect for the dignity, human rights and fundamental freedoms of people’. Hence, any distinction as to persons in the regulations means these specific categories have to fall under ‘persons’ and within the general framework for the protection of human rights.
86 Fidler likewise points to the tension between the focus on civil and political rights and the need to strengthen national health systems in the fight against infectious diseases (see Fidler, International Law and Infectious Diseases, 172, 179 et seq.).
87 The focus of the regulations on civil and political rights is traditional since public health measures limit civil and political rights connected to liberty of individuals in the widest sense (see ibid., 171, 194, 218).
88 The regulations require states parties to develop capacities with regard to information and public health response (see IHR, Arts 5–8, 13 and Annex 1).
89 Article 12(2)(b) of the IESCR explicitly states that for the full realisation of the right to health states must take steps necessary for ‘the prevention, treatment and control of epidemic … diseases’. For the link between civil and political rights and the right to health see Brigit Toebes, ‘Towards an Improved Understanding of the International Right to Health’, Human Rights Quarterly 21, no. 3 (1999): 661–9.
90 Kumanan Wilson, John S. Brownstein, and David P. Fidler, ‘Strengthening the International Health Regulations: Lessons from the H1N1 Pandemic’, Health Policy and Planning 25 (2010): 506–7; and Editorial, ‘Ebola: What Lessons for the International Health Regulations?’, The Lancet 384 (11 October 2014): 1321.
91 The Executive Board of the WHO addressed these issues and called upon member states and the international community to enhance the effective response to Ebola preparedness, contribute to long-term health strengthening, and improve implementation of the regulations. See Executive Board, Resolution ‘Ebola: Ending the Current Outbreak, Strengthening Global Preparedness and Ensuring WHO's Capacity to Prepare for and Respond to Future Large-scale Outbreaks and Emergencies with Health Consequences’, 25 January 2015, EBSS3.R1, in particular paras 11, 12, 29, 48.
92 See Alicia Ely Yamin, ‘Ebola, Human Rights, and Poverty – Making the Links’, Open Global Rights, 23 October 2014, https://www.opendemocracy.net/openglobalrights-blog/alicia-ely-yamin/ebola-human-rights-and-poverty-making-links; and ‘Violation by Omission? The Case of Human Rights in Public Health Emergencies’, The Graduate Institute, 11 December 2014, http://graduateinstitute.ch/home/research/centresandprogrammes/globalhealth/news/past-news.html/_/news/ghp/news-8.
93 See ‘Violation by Omission?’ (remarks by Gorik Ooms) and OHCHR, ‘Fact Sheet No.3 (Rev.1), Advisory Services and Technical Cooperation in the Field of Human Rights', http://www.ohchr.org/Documents/Publications/FactSheet3Rev.1en.pdf.
94 See IHR, Art. 3(1), and Art. 32(1), including (a).
95 See IHR, Art. 42 and 32(1) (b).
96 See Nowak, CCPR Comentary, 126–41.
97 General Comment No. 29, 5.
98 Cf. General Comment No. 29, 4; and Bantekas and Oette, International Human Rights, 74.
99 See above note 67.
100 See ICCPR, Art. 4, General Comment No. 29; and Nowak, CCPR Commentary, 72–93.
101 See IHR, Art. 18(1).
102 Some aspects of the right to privacy concerning the treatment of personal data are addressed also in Article 45.
103 It must be emphasised that certain aspects of ICCPR Article 9 enjoy the status of non-derogable rights that cannot be limited under the limitations model. The fundamental guarantee against arbitrary detention is non-derogable, as well as procedural guarantees for the protection of non-derogable rights (see HRC, General Comment No. 35, Article 9: Liberty and Security of Person, 16 December 2014, CCPR/C/GC/35, 19–20; and Siracusa Principles, para. 70).
104 With regard to ICCPR Article 12, the principle of proportionality applies solely to Articles 12(1) and (2).
105 For a similar classification see Fidler and Gostin, ‘The New International Health Regulations', 87–8.
106 For the balancing exercise and the standard of proportionality in the jurisprudence of the HRC see: with regard to the right to privacy Toonen v. Australia, 31 March 1994 (No. 488/1992), paras 8.3, 8.5; with regard to the right to liberty M.M.M. et al. v. Australia, 23 October 2013 (No. 2136/2012), para. 10.3; and with regard to the right to movement Sayadi and Vinck v. Belgium, 22 October 2008 (No. 1472/2006), para. 10.5.
107 See US Supreme Court, Griswold v. Connecticut, 7 June 1965, 381 U.S. 479 (1965), Opinion of the court delivered by Justice Douglas. See also Michael O'Flaherty, ‘Sexual Orientation and Gender Identity’, in International Human Rights Law, eds. Moeckli, Shah, and Sivakumaran, 306–7.
108 See Nowak, CCPR Commentary, 294–9.
109 John Stuart Mill, On Liberty (Kitchener: Batoche Books, 2001[1859]), 14. See also Nuffield Council on Bioethics. Public Health: Ethical Issues (London: Nuffield Council on Bioethics, 2007), 14–16.
110 IHR, Art. 18(1).
111 IHR, Art. 45(1).
112 However, in doing so states parties – as well as the WHO – must observe certain rules. They must ensure that the personal data is: (i) processed fairly and lawfully; (ii) adequate, relevant and not excessive in relation to the purpose; (iii) accurate and, where necessary, kept up to date; inaccurate data must be erased or rectified; and (iv) not kept longer than necessary (IHR, Art. 45(2)).
113 IHR, Art. 45(3).
114 See Nowak, CCPR Commentary, 295–6, 297–8; and Fidler and Gostin, Biosecurity in the Global Age, 198.
115 See IHR, Art. 18.
116 See http://www.medicinenet.com/script/main/art.asp?articlekey=5925. See also Public Health: Ethical Issues, 53 and the term vaccine at: http://www.who.int/topics/vaccines/en/.
118 The regulations go on to specify that medical examination ‘may include the scrutiny of health documents, and a physical examination when justified by the circumstances of the individual case (IHR, Art. 1(1)).
119 Ibid.
120 The regulations further specify that the following measures are considered non-invasive: ‘medical examination of the ear, nose and mouth, temperature assessment using an ear, oral or cutaneous thermometer, or thermal imaging; medical inspection; auscultation; external palpation; retinoscopy; external collection of urine, faeces or saliva samples; external measurement of blood pressure; and electrocardiography' (ibid.).
121 See also Nowak, CCPR Commentary, 290–1; and HRC, M.R. v. Germany, 23 July 2008 (No. 1482/2006), para. 10.1.
122 See HRC, Toonen v. Australia, paras 8.3, 8.5, 8.6. On the principle of proportionality concerning the right to privacy see also HRC: Van Hulst v. Netherlands, 1 November 2004 (No. 903/1999), paras 7.6, 7.10; and Raihman v. Latvia, 28 October 2010 (No. 1621/2007), para. 8.3.
123 IHR, Annex 6.
124 IHR, Annex 7.
125 IHR, Annex 8.
126 IHR, Annex 9.
127 See HRC, General Comment No. 16: Article 17 (Right to Privacy), adopted 8 April 1988, HRI/GEN/1/Rev.9 (Vol. I) 191, para. 10.
128 See IHR, Arts 43(2), 23(2) and 31(2)(c).
129 IHR, Art. 18(1). When referring to the measure of quarantine the line continues with the text ‘or other health measures for suspected persons’. It seems reasonable to interpret that expression in relation to quarantine.
130 Lesley A. Jacobs, ‘Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto’, Law & Society Review 41, no. 3 (2007): 513, 521.
131 IHR, Art. 1(1). See also ‘Fact Sheet on Isolation and Quarantine’, 20 January 2004, Centres for Disease Control and Prevention, Department of Health and Human Services, http://www.cdc.gov/sars/legal/fs-legal.pdf; and Geoff Manaugh and Nicola Twilley, ‘Ebola and the Fiction of Quarantine’, 11 August 2014, The New Yorker.
132 These measures may include voluntary staying at home or guarded home confinement. Sometimes it is not easy to delineate these measures from those falling within the context of the freedom of movement.
133 ICCPR, 9(1).
134 Nowak, CCPR Commentary, 160; and Sangeeta Shah, ‘Detention and Trial’, in International Human Rights Law, ed. Moeckli, Shah, and Sivakumaran, 261.
135 Ibid., 159–60, 167–8; Shah, ‘Detention and Trial’, 263–4; and General Comment No. 35, 3.
136 General Comment No. 35, 19–20.
137 In particular those provisions of Article 9 that do not pertain to criminal proceedings.
138 See General Comment No. 35, 3, 4, 7; and jurisprudence of the HRC: Van Alphen v. The Netherlands, 23 July 1990 (No. 305/1988), para. 5.8, Gorji-Dinka v. Cameroon, 17 March 2005 (No. 1134/2002), para. 5.1; and Kulov v. Kyrgyzstan, 26 July 2010 (No. 1369/2005), para. 8.3.
139 For example, the incubation period for yellow fever is three to six days, for viral haemorrhagic fevers (e.g. Ebola) it can be up to 21 days, while anthrax develops in one to seven days (see Centres for Disease Control and Prevention, CDC Health Information for International Travel 2014: 2014 Yellow Traveller's Book, http://wwwnc.cdc.gov/travel/page/yellowbook-home-2014).
140 See Shah, ‘Detention and Trial’, 265; and HRC, Wenga and Shandwe v. DR Congo, 17 March 2006 (No. 1177/2003), para. 6.2. See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, General Assembly, 9 December 1988, A/RES/43/173, Principle 10 (the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment is a set of soft law norms adopted by the UN General Assembly which further extrapolates the substance of the right to liberty).
141 General Comment No. 35, 8; and Body of Principles, Principle 14. In addition, foreigners have a right to communicate with consular or diplomatic agents of their respective countries or, if they are refugees, with a representative of the appropriate international organisation (ibid., Principle 16(2)).
142 General Comment No. 35, 12–14; Body of Principles, Principles 32 and 11; and Shah, ‘Detention and Trial’, 266. See also jurisprudence of the HRC: Fijalkowska v. Poland, 26 July 2005 (No. 1062/2002); paras 8.3, 8.4; Ahani v. Canada, 29 March 2004 (No. 1062/2002), para. 10.2; and Mika Miha v. Equatorial Guinea, 8 July 1994 (No. 414/1990), para. 6.5.
143 Under the relevant Canadian legislation, a suspected individual can be held for 48 hours. If held for longer, the executive decision is automatically subject to a judicial review. Judges must hear such cases within one day (Erin M. Page, ‘Balancing Individual Rights and Public Health Safety during Quarantine: The U.S. and Canada’, Case Western Reserve Journal of International Law 38 (2006–2007): 535–6).
144 See Body of Principles, Principles 11(1), 17 and 18; and Fijalkowska v. Poland, para. 8.4.
145 Cf. George J. Annas, Wendy K. Mariner and Wendy E. Parmet, Pandemic Preparedness: The Need for a Public Health – Not a Law Enforcement/National Security – Approach (New York: American Civil Liberties Union, 2008), 33. Ries suggests that there should be a possibility of ‘class quarantine orders’ to put suspected individuals under quarantine (Nola M. Ries, ‘Quarantine and the Law: The 2003 SARS Experience in Canada’, Alberta Law Review 43 (2005): 547). Although this is a viable option, access to the court should be provided to those affected by such orders.
146 See Body of Principles, Principle 25.
147 Cf. IHR, Art. 32(c); and Body of Principles, Principle 24.
148 See Body of Principles, Principles 16 and 19. The Canadian SARS experience demonstrates that persons who were quarantined and were barred from social contacts experienced a serious sense of isolation (see Ries, ‘Quarantine and the Law', 538–9).
149 The regulations mention that authorities should provide ‘means of necessary communication if possible in a language that they can understand' (IHR, Art. 32(c)).
150 Ibid., Principle 12; and General Comment No. 35, 17.
151 General Comment No. 35, 15–16; and Shah, ‘Detention and Trial’, 266. See HRC, Bolaños v. Ecuador, 26 July 1989 (No. 238/1987), para. 10; and Mulezi v. Democratic Republic of the Congo, 8 July 2004 (No. 962/2001), para. 8.
152 IHR, Art. 18(1).
153 The ACHR has a similar scheme for the right to movement in Article 22 (Freedom of Movement and Residence).
154 ICCPR, Art. 12(1). See HRC, Lovelace v. Canada, 30 July 1981 (No. R.6/24), paras 15 and 18.
155 ICCPR, Art. 12(2). See HRC, El Ghar v. Libyan Arab Jamahiriya, 29 March 2004 (No. 1107/2002), para. 7.3.
156 ICCPR, Art. 12(4). See infra note 161.
157 ICCPR, Art. 12(3).
158 That public health is such a ground is self-evident. In addition, the category of the rights and freedoms of others is likewise relevant in the context of the spread of infectious diseases (e.g. HIV/AIDS). However, every case needs to be evaluated on an ad hoc basis to avoid social stigma because of the disease (Nowak, CCPR Commentary, 215, 217). See also a judgment in the case Enhorn v. Sweden, European Court of Human Rights, 25 January 2005 (Application No. 56529/00); and Robyn Martin, ‘The Exercise of Public Health Powers in Cases of Infectious Disease: Human Rights Implications’, Medical Law Review 14 (2006): 132–43.
159 HRC, General Comment No. 27: Freedom of Movement (Article 12), 1 November 1999, CCPR/C/21/Rev.1/Add. 9, 4; and HRC, Sayadi and Vinck v. Belgium, para. 10.5; and Nowak, CCPR Commentary, 217.
160 Nowak, CCPR Commentary, 219–21. See also jurisprudence of the HRC: Lichtensztejn v. Uruguay, 31 March 1983 (No. 77/1980), para. 8.3; Stewart v. Canada, 1 November 1996 (No. 538/1993), paras 12.2–12.9; Madafferi v. Australia, 26 July 2004 (No. 1011/2001), para. 9.6.
161 For an opposite view see Barbara von Tigerstrom, ‘The Revised International Health Regulations and Restraint of National Health Measures’, Health Law Journal 13 (2005): 64–5.
162 This measure can likewise represent a limitation of the right to liberty.
163 Fidler, International Law and Infectious Diseases, 26–7; Annas, Mariner, and Parmet, The Need for a Public Health Approach, 33; Kathleen S. Swendiman and Jennifer K. Elsea, Federal and State Quarantine and Isolation Authority (Washington DC: The Library of Congress, 2005), 18–19; Lawrence Gostin, Daniel Lucey, and Alexandra Phelan, ‘The Ebola Epidemic: A Global Health Emergency’, JAMA 312, no. 1 (2014): 1095; and Donald G. McNeil, ‘Using a Tactic Unseen in a Century, Countries Cordon Off Ebola-Racked Areas’, The New York Times, 12 August 2014, http://www.nytimes.com/2014/08/13/science/using-a-tactic-unseen-in-a-century-countries-cordon-off-ebola-racked-areas.html?_r=0.
164 Gostin, Lucey, and Phelan, ‘The Ebola Epidemic', 1095.
165 Human Rights Watch, ‘West Africa: Respect Rights in Ebola Response’, 15 September 2014, http://www.hrw.org/news/2014/09/15/west-africa-respect-rights-ebola-response. Fidler and Gostin speak of the need for the rule of law in the context of the biosecurity governance (see Fidler and Gostin, Biosecurity in the Global Age, 195–203).
166 This was particularly the case during the Ebola epidemic. See McNeil, ‘Using a Tactic Unseen in a Century'; Solomon Sogbandi, ‘Living with Ebola in Freetown: “It Feels like the Whole Country is in Quarantine”’, Amnesty International UK/Blogs, 6 November 2014, http://www.amnesty.org.uk/blogs/global-voices/living-ebola-freetown-it-feels-whole-country-quarantine; and Joseph Amon, ‘What Turns a Few Cases of Disease into Thousands?’, Human Rights Watch, 12 September 2014, http://www.hrw.org/news/2014/09/12/what-turns-few-cases-disease-thousands.
167 IHR, Art. 23(1)(a)(i) and (ii).
168 One can envisage data collection through data sharing with WHO and other states (see IHR, Art. 45).
169 IHR, Art. 23(3).
170 IHR, Art. 31(1).
171 Ibid. At this point, the regime under the regulations gets circular with cross-references to articles that served as a point of departure. Consequently, it becomes increasingly difficult to decipher the clear intent behind some provisions.
172 IHR, Art. 31(2).
173 The regulations also use the expression that the state may ‘advise’ the traveller to undergo this treatment, pursuant to his or her express informed consent. Yet again, cross-references get circular, which enhances the compulsory character of this provision.
174 IHR, Art. 31(2).
175 Fidler and Gostin, ‘The New International Health Regulations', 88; and Hodge, ‘Global Legal Triage in Response to the 2009 H1N1 Outbreak', 610.
176 An important point here is that the requirement of ‘the least invasive and intrusive’ applies only to medical examination and not to other, more serious health measures such as vaccination, quarantine and isolation (Hodge, ‘Global Legal Triage in Response to the 2009 H1N1 Outbreak', 610).
177 Any interference with the right to privacy must be lawful and non-arbitrary and there should be protection of the law against such interference. See ICCPR, Art. 17(1) and 17(2). See also General Comment No. 16, 1–2.
178 Fidler and Gostin, ‘The New International Health Regulations', 87.