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. Read the rest of this entry…