The 2019-2020 novel coronavirus (2019-nCoV) outbreak, discerned for the first time in Wuhan, China, has emerged to become the prime cause of the international society’s concern.
The virus in focus is from the same microbe category as the Severe Acute Respiratory Syndrome (SARS), which was also the progenitor of a health problem of extreme proportions in China that encompassed large swathes of the world from 2002 to 2003.
In January 2020, coronavirusSARS-CoV-2 was deemed the reason of an outbreak of severe pneumonia, now known to be a complication of the coronavirus disease 2019 (COVID-19). Since then, the infirmity has spread alarmingly, with the World Health Organization terming the outbreak as a pandemic on the 11th of March. At the time of writing, the tally of infected stands at more than more than19 million and more than 700,000 deaths had been reported worldwide.
In our interlinked world, the impacts of the disease have been multidimensional, affecting all walks of the society. It won’t be a hyperbole to remark that this has been the first time since the Second World War that the global citizenry has faced a multi-system emergency as the coronavirus pandemic.
As the pandemic rages on, states throughout the world have struggled to augment their efforts. Pre-emptive measures entail a gamut of restrictions spanning from issuing injunctions, compulsory quarantines and isolating infected individuals. In addition, they also include outright bans on travel and effecting the cordoning-off of cities and, in certain instances, countries.
Against this backdrop, this literature focuses upon the legal apparatus concerning pandemics and the related legal and ethical themes.
THE IHR REGIME
Article 12 of the International Health Regulations, endows the WHO’s Director General with the authority to promulgate a public health emergency of international concern (PHEIC). The DG can only do so after consulting with an Emergency Committee, as defined under Article 48 IHR. A PHEIC is recognised inArticle 1 IHR as an event that constitutes a public health risk to other States through the international spread of disease, and potentially requires a coordinated international response.
Whether an outbreak warrants a PHEIC or not should essentially be adjudicated with the assistance of the epidemiological statistics at hand. In adherence to Article 7 IHR, the countries are required to furnish all public health information that is relevant. On the other hand, Article 9(1) IHR provides that the WHO has the prerogative to consider reports from independent sources as well. As interpreted from the aforementioned statements, the states are not perceived as the only source of information. However, it is an obligation for the organisation under Article 10(1) IHR to substantiate the figures provided through non-governmental avenues with the states. Nevertheless, Article 10(4) IHR offers the likelihood to cast aside state parties in view of non cooperation.
Article 6 IHR obligates the states to inform about any occurrence that can account for a PHEIC within 24 hours. In recent times, research reports from WHO have brought up analysis of 440 incidents related to health issues in 2019. Formerly, the incidence of a single or two cases amongst the reports was sufficient for the Director General to summon an Emergency Committee to deliberate upon the declaration of a PHEIC.
Through the provisions of Article 15 IHR, the WHO can issue temporary recommendations after declaring a PHEIC. They may comprise of, inter alia, avoiding the imposition of travel and commercial proscriptions that are more restrictive than required, whilst specifying the ones, preferable.
Violations of the IHR rules do not lead to penalties. Moreover, since the recommendations only possess persuasive value, there are no direct ramifications of any legal nature. On paper, resolution of disagreements is attainable under Article 56 IHR that lays down international duty. Although, these provisions have never been adduced till now.
In addition, the IHR is replete with references regarding human rights, though mostly focusing on cross-border visitors. Although, with closer scrutiny of the regulations, it’s still obscure whether Article 43 IHR,which provides for the ratification of supplemental public health systems, is also germane to a purely domestic dimension. The degree of government acts done during the breakout of the novel coronavirus should also beckon towards a more inquisitive, rights-intensive analysis.
THE LEGAL AND ETHICAL ISSUES
In 2005, the World Health Assembly proposed to its Member States, the resolution to develop plans of preparedness for pandemic influenza on a nationwide scale. In reply to this, many states devised plans although analyses have shown sizeable differences within countries of Europe and the Asia-Pacific region when it comes to the terms of their pandemic planning and implementation.
The WHO has issued a checklist to aid nations in their forethought as a section of its work regarding global pandemic preparedness. It divides elements into two categories, namely, essential and desirable , to help nations array their planning activities. Essential elements are classified as those that should be considered by all countries developing an influenza preparedness plan, irrespective of their resources. The list encapsulates cogitation of legal and ethical issues as a segment of nationwide preparation for influenza pandemics. Within this, consideration of legal issues is listed as essential while that of the ethical issues as desirable.
Within its catalogue of legal issues, WHO includes the necessity to recognise the merits and demerits of promulgating a state of emergency in the course of a pandemic and necessitates the need to ascertain the existence of a national level legislative framework.
Moreover, it’s asserted that an assessment is made, in relation to the legality of the public health measures which may be needed to be implemented during a pandemic, including closures of places of public gathering, blanket bans on travel, provisions of isolation and quarantine as well as proposals regarding social distancing.
Regulations and strategies relating to inoculation of workers in the health care sectors, essential services, and those at high health hazards should also be analysed if the necessity arises. It also entails issues relating to maintaining accountability for the well-being of retired health care workers and volunteers assisting during a pandemic.
To add to that, liability issues relating to manufacture and use of antiviral agents and vaccines, and the need to consider whether influenza should be added to the framework concerned with safeguards against occupational hazards, are also included. As mentioned previously, the WHO bulletin enlists a number of ethical issues to be taken into consideration as part of national pandemic planning, as well. These ethical issues include equitable allocation of scarce resources such as antivirals or vaccines; issuance of vaccination of workers in the health care and essential services. Matters connected to curtailment of privileges of movement through quarantine or confinement; and the establishment of an ethical framework for research.
The need for an effective legal framework for pandemic plans and for measures needed for other public health emergencies has impelled many countries to re-assess their laws regarding public health. In countries such as Canada, Australia, China, Hong Kong, and Singapore, the outbreak of SARS led to a detailed evaluation of public health laws. In the United States, the establishment of a Model State Emergency Public Health (MSEPH)Act provided a push for a state level legislative reform. WHO has acknowledged the requisites of planning to be tailored for local conditions and to be apposite culturally, in its Ethical Considerations in Developing a Public Health Response to Pandemic Influenza. Apropos the developing nations, objections have been raised on the over-reliance on high technology screening, a measure more apt for the developed nations. Examples and case studies have demonstrated in countries in South-east Asia such as Cambodia, Indonesia, Lao PDR, Taiwan, et al, that multifarious factors, including effective coordination with the public health structure is pivotal for advancing safeguard measures.
Awareness needs to be called upon the fact that contagions do not acknowledge borders and they can spread briskly across the globe. The presence of effective public health infrastructures in countries, both rich and poor, is a vital facet of overcoming health perils in a conjoined environment as ours.
As per the WHO’s observation, law is a key factor in the establishment of sound policy making for pandemic management. The issues and alternatives are defined as parts of a legal framework to ensure transparent assessment and justification of the measures that are being considered, and to ensure coherence with international legislation (International Health Regulations). Ethical topics are vital to the formation of a legal order for pandemics as WHO remarks they are part of the normative framework that is needed to assess the cultural acceptability of measures such as quarantine or selective vaccination of predefined risk groups.
The soft-law advisory by the WHO towards structuring the national pandemic plans leaves scope for variations in national approaches that reflect cultural, institutional or other differences. Cultural as well as ethical pertinence of the planning steps needs to be more adjustable and nuanced than is currently envisioned in international prescriptions, to come up with a strong response internationally.
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