In his recent post on the 2018-2019 Ebola Outbreak in the Democratic Republic of Congo, Mr. Villarreal inter alia mentions the connection between the International Health Regulations (IHR) and international human rights law, arguing that states’ obligations under the IHR are to be read in conjunction with those under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Obviously, the right to health enshrined therein is of utmost relevance.
While that point of view deserves full support, a further link could be traced between international human rights law and “international law of infectious diseases” – the obligation of states to report outbreaks of infectious diseases, lying at the very heart of international efforts to cope with pandemics.
This post intends to demonstrate that the reporting obligation for infectious disease outbreaks can be inferred from general legal sources such as the duty of state co-operation and the human right to health as well as from the IHR – a specific regime. The below analysis purports to show how and why this could and should be done.
Disease outbreaks and the duty to co-operate
Although the mentioned Ebola outbreak was originally reported to the World Health Organization (WHO) by the Government of the DRC, states may well be disincentivised to notify outbreaks of contagion, especially on crucial early stages. Hence the need for incentives for honesty in this regard, not excluding legal ones.
The IHR (Art. 6) establish the reporting duty, i.e. the obligation of states to assess events occurring within their territories using a special decision-making instrument attached to the IHR and timely notify the WHO of all events which may constitute a public health emergency of international concern (the legal regime for declaring a PHEIC has been discussed in the mentioned post).
The duty (sometimes referred to as the principle) of state co-operation under general international law and the specific obligation of reporting epidemic outbreaks share an obvious fundamental similarity: both pursue the same objective – addressing issues that transcend national borders and are beyond sovereign control. Although individual states are responsible for preserving public health in their territories, their efforts may be rendered meaningless without international co-operation (J. Tobin, The Right to Health in International Law (2012), p. 325). In the WHO’s words, “health is a shared responsibility, involving equitable access to essential care and collective defense against transnational threats” (UNSG, Global Strategy for Women’s and Children’s Health (2010)).
This finding, however, considerably loses in value due to the legal nature of the duty to co-operate. On the one hand, it is enshrined in the United Nations Charter (Arts.1(3), 2, 55, 56), as well as the UNGA’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States and has allegedly become a part of customary international law (R. Wolfrum, International Law of Cooperation (2010), para. 13). On the other hand, under the UNC, the principle of state co-operation is said to reflect one of the UN objectives rather than constitute a binding obligation (R. Wolfrum, International Law of Cooperation (2010), para. 16). The mentioned UNGA Resolution adds little clarity.
The duty to co-operate put into context
So, should it be founded upon the duty to co-operate, the obligation to report epidemic outbreaks will end up being no more enforceable than the latter. Still, there is a chance of enhancing the enforceability by putting the duty of co-operation into a specific context. In particular, the ICESR (Art. 2(1)) requires states to co-operate for fulfilling the rights enshrined in the instrument. The UN Committee on Economic, Social and Cultural Rights (CESCR) considers the obligation under Art.2(1) to be founded upon and corresponding to the respective provisions of the UNC and well-established principles of international law (CESCR, General Comment No. 3, para. 14). Besides, within the ICESCR, this obligation clearly relates to the protection of public health (ICESCR, Art.12).
However, even if the duty to co-operate under the ICESCR might be specified and narrowed in the field of public health (yielding inter alia the obligation to report infectious outbreaks), the enforceability will still be problematic as is the case for all obligations of conduct (for the “progressive realization” approach see CESCR, General Comment No.3, para. 1). An argument is made that applying the duty of co-operation to the field of public health is futile as states differ greatly in abilities and resources and cannot be expected to achieve any uniform standards (J. Tobin, The Right to Health in International Law (2012), p. 331).
Indeed, states refusing to report an epidemic outbreak would hardly be brought to an international responsibility for breaching the obligation to co-operate. But for the IHR, the international legal regime of disease control would face a real and a very practical gap.
Epidemic reporting and the human right to health
Efforts to enroot the duty of epidemic reporting in a more specific source will necessarily lead to human rights. The “human right based approach to securing public health” jumps to our minds first (see e.g. here). However, the connection between human rights law and the obligation related to epidemic control appears somewhat unusual: human rights law serves not as a standard setter, but as a general framework giving rise to a narrow and a very specific duty related to public health.
In this respect, one shall basically inquire whether the duty to report infectious diseases proceeds from the human right to health, or, in other words, whether non-compliance with the former means non-compliance with the latter.
The human right to health is recognized by almost all regional human rights instruments (1987 African Charter on Human and People’s Rights, Art.16; 1948 American Declaration of the Rights and Duties of Man, Art. 11; 1988 Additional Protocol to the American Convention on Human Rights on the Area of Economic, Social and Cultural Rights, Art. 10; 1996 European Social Charter, Art. 11). It is as well proclaimed at the universal level (UNC, Art. 55; WHO Constitution, Preamble; 1948 Universal Declaration of Human Rights, Art. 25). Still, the ICESCR (Art. 12) looks like the most “promising” source.
Art. 12 of the ICESCR defines the right to health and non-exhaustively enumerates actions states need to undertake to fulfil the right (CESCR, General Comment No. 14). The examples include securing “the right to prevention, treatment and control of diseases” (ICESCR, Art. 12(3)). This requires states to create a system of medical care to efficiently address cases of epidemics or other health hazards (CESCR, General Comment No. 14, para. 16). The CESCR comments that states shall improve epidemiological surveillance and data collection, as well as other strategies of disease control. States are also required to take measures against any potential hazards in reliance upon epidemiological data which necessarily implies data collection and processing. Failure to co-operate against transborder health emergencies entails joint and individual liability (CESCR, General Comment No. 14, para. 40).
The CESCR interpretation implies that the duty of reporting epidemic outbreaks can hardly be excluded from the scope of the human right to health, even though nowhere mentioned explicitly. Assuming states were not bound to timely share information on infectious disease emergencies, “potential hazards” could hardly be prevented through an “effective medical care system”, obviously depriving the respective part of Art.12 of the ICESCR of its raison d’etre.
In reading the obligation to report epidemic outbreaks from the ICESCR, the “silver bullet” of the good faith interpretation principle is especially helpful. In the cases like the one here discussed, good faith interpretation would serve as a useful tool to discern specific narrow obligations from a broader duty formulated in most neutral and general terms.
Besides, many interested scholars share quite a consistent belief that the obligation to report epidemic outbreaks forms a part of the minimum core obligations under the ICESCR (L. Gostin, Z. Lazzarini, Human Rights and Public Health Law in the AIDS Pandemic (1997), p. 29). This is further confirmed by reference to other international instruments laying down the right to health (D. Fidler, International Law and Infectious Diseases (1999), p. 193). Some even go as far as to suggest a human right to infectious disease control (C. Pannenborg, A New International Health Order: An Inquire into the International Relations of World Health and Medical Care (1979), p. 318). Still, “the more the better” principle does not work in this case, as it is reasonable to note that “if the right to health covers everything, then it means nothing (S. Jamar, The International Human Right to Health 1994, p. 53).
As the bottom line, it can be safely concluded that the duty to report infectious disease outbreaks forms a part of states’ obligations with respect to the human right to health. The non-compliance with the former necessarily means non-compliance with the latter. Hence, a state’s concealment of an epidemic outbreak shall entail international responsibility under Art.12 of the ICESCR, however hard that may be to implement given the hardships of enforcing human right law as such.
What’s the point?
Finding additional grounds (i.e. beyond the IHR) of the obligation to report infectious disease outbreaks is of practical value.
No doubt, the IHR is best tailored for the purpose. However, several alternative sources of the same duty make it more compelling as well as widen the institutional tools for making the duty operational. States may be enticed to comply with WHO rules if only to keep it within the WHO and prevent the “leak” of the issue to other forums. Given the current (and, actually, everlasting) uncertainties of WHO’s mandate and powers, including the field of disease control, this would be a meaningful achievement. On the other hand, given that the credibility and efficiency of the IHR are frequently challenged and considering current global health-related concerns, one be better equipped with a “fall back option”.