Ebola: Harmonizing Countries’ Internal Safety Precautions with their Obligations Under International Law

Katherine Lewis, Associate Editor, Michigan Journal of International Law

The Ebola outbreak in West Africa has killed almost 5,000 people, with the World Health Organization (WHO) reporting over 13,700 infections as of October 29, 2014.[i] As the WHO struggles to contain the epidemic, fear the disease will spread outside of West Africa has prompted a slew of countries to impose various regulatory measures in frantic attempts to prevent the disease from infiltrating their borders. Many have adopted the WHO’s recommendations for heightened security at airport customs;[ii] others have gone further and suspended visa applications from West African passport holders, effectively restricting travel to and from Ebola-affected countries.[iii] Here in the United States, several states have imposed mandatory 21-day quarantines on “high risk” international travelers, specifically on health care workers returning from volunteer stints in West African Ebola clinics.[iv] While public health experts acknowledge a need for increased caution, they insist that draconian responses such as travel bans and forced quarantines amount to little more than fear mongering and will do nothing to prevent spread of the disease.[v] For example, a study of the public health response following the 2003 SARS outbreak showed that border entry and exit screening measures were ineffective in detecting sick travelers – failing to detect even a single case of SARS.[vi] Experts warn that extreme responses by other countries could backfire and exacerbate the epidemic in West Africa by impeding the flow of critical medical resources to infected countries and deterring healthcare workers from volunteering abroad. [vii] Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, has said, “To completely seal off and [refuse travel] in or out of the West African countries [affected by Ebola], then you could paradoxically make things much worse in the sense that you can’t get supplies in, you can’t get help in, [and] you can’t get the kinds of things in there that we need to contain the epidemic.”[viii] The disjointed international response to Ebola illuminates a challenge international law has faced time and time again in dealing with global public health crises: the difficulty in harmonizing countries’ internal precautions with their obligations under international law. Communicable diseases such as Ebola pay no respect to the geopolitical boundaries of nation states.[ix]  In today’s globalized world, this presents a daunting transnational challenge beyond the governing capabilities of individual countries.[x] As a result, international law has come to play an important role in establishing uniform healthcare practices and facilitating a coordinated international response when a communicable disease threatens public health. Intergovernmental organizations, such as the United Nations and the WHO, have established safety protocols for combatting threats of communicable disease. These protocols include informing the WHO of any diagnoses of suspect diseases which pose serious public health risks and continually updating the WHO as data is collected to better aid the organization is determining the scope of the outbreak.[xi] To an anxious fear-ridden community, the protocols may appear somewhat understated, but their purpose and scope are specifically aimed at preventing, protecting against, controlling and providing a public response commensurate with the actual risk at hand and in a way that avoids unnecessary interference with the critical flow of international traffic and trade.[xii] The three West African countries hardest hit by the Ebola virus – Guinea, Sierra Leone and Liberia – are all members of the United Nations and members of the WHO.[xiii] Article 55 of the UN Charter charges its members with promoting solutions to international health problems.[xiv] Member parties to the WHO have similar obligations, including adhering to the protocols briefly mentioned above. The three hardest hit countries are also State Parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR), joined by 159 other countries, including many of the countries which have chosen to respond to the Ebola crisis by suspending travel to and from “high risk” locations in West Africa.[xv] Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) stipulates that States Parties “recognize the right of everyone to the enjoyment of the highest standard of physical and mental health […. which includes] the prevention, treatment, and control of epidemic, endemic, occupational and other diseases [and] the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”[xvi] The ICESCR obligates each of its 162 participating nation states to take steps individually and through providing international assistance to ensure affected member countries’ full range of rights under the ICESCR are met.[xvii] Under the language of ICESCR Article 12, this includes action to combat epidemics such as Ebola. In the same vein, State Parties also have an obligation to refrain from responding in a way that would restrict the flow of critical medical supplies and healthcare support to affected countries.[xviii] While countries retain discretion to respond to global health threats by imposing their own internal precautions, State Parties to the United Nations, the WHO, and to ICESCR have an obligation under international law to ensure their internal responses do not conflict with their obligations to fellow participating State Parties under international law. Responses such as blanket travel bans and twenty-one day quarantines on asymptomatic international travelers threaten the ability of West African countries to contain the virus. Countries’ responses would align with the recommendations provided by the WHO to ensure they are commensurate with the actual risk posed by Ebola. The death toll in West Africa is rising every day, with no signs of slowing. Perhaps it is time for the UN Security Council to consider sanctions on Member States whose extreme responses contradict the spirit of the conflict with their legal obligation under international law.