Tuesday, April 28, 2009
The Swine Flu Outbreak and International Law-American Society of International Law (ASIL) Publication
We do not discuss International Law issues much here. However, the American Society of International Law just published an "Insight" paper written by a Indiana law professor David P. Fidler about the Swine Flu Outbreak. Insights are electronically
published articles produced periodically by the American Society of
International Law (ASIL) and written
by legal experts on timely issues dealing with international law. You can find
past Insights on a variety of
topics at http://www.asil.org/insights.
Swine Flu Outbreak and International Law is available at http://www.asil.org/
It discusses a whole host of public policy issues and recommendations that can range from merely watching the situation and reporting outbreaks (which the World Health Organization has done) to full blown restrictions on trade. The article, which is well written, provides in part:
Under the IHR 2005, if the WHO Director-General declares a public health emergency of international concern, then the Director-General must issue temporary recommendations (Article 15(1)). The nature of the temporary recommendations depends on the threat, and the IHR 2005 provides possible recommendatory actions (Article 18). Temporary recommendations are not binding under the IHR 2005.
On April 25, 2009, the WHO Director-General issued the temporary recommendation that “all countries should intensify surveillance for unusual outbreaks of influenza-like illness and severe pneumonia.” The Director-General did not recommend trade or travel interventions with respect to countries affected by the outbreak. However, some countries have adopted such measures, including issuing travel notices warning against travel to Mexico (e.g., Hong Kong), screening air passengers arriving from affected countries (e.g., Japan), and banning pork exports from Mexico and affected states in the United States (e.g., Russia).
The IHR 2005 do not preclude States Parties from implementing measures that achieve a greater level of health protection than WHO temporary recommendations, provided that such measures are (1) otherwise consistent with the Regulations, and (2) not more restrictive of international trade and travel, and not more invasive or intrusive to persons, than reasonably available alternatives that would achieve the appropriate level of health protection (Article 43(1)) (see analysis below on trade and travel restrictions).
Mitchell H. Rubinstein