Epidemics in Failed States: The Legality of Quarantine and International Intervention

Lubna El-Gendi

The Law of Nationbuilding

Fall 2007

 

Introduction

            As concerns over terrorism and the possibility of another September 11 dominate national security discussions, the threat posed by failed states cannot be ignored.  In failed states the government has collapsed and is no longer able to meet the needs of its population, maintain law and order, or secure its borders.[1]  These states, which are characterized by little to no control and a state of anarchy, serve as obvious attractions to terrorist groups, who seek haven in these states where there is no order and no strong government.[2]  Terrorist groups, among others, exploit the lack of government control, the illicit economic activity that flourishes in a failed state, and the lack of border security or any effective border controls.[3]  As such, failed states have been recognized as “breeding grounds for extremism and staging points for organized terrorist groups.”[4]  The threat that failed states pose was perhaps best demonstrated by the September 11 attacks, which were planned by al Qaeda, a terrorist group which was supported by the Taliban government in the failed state of Afghanistan.[5]

            Failed states and the lack of any governmental control in such a state, however, pose an even bigger threat than possibly serving as a safe haven for terrorists.  With the collapse of all state institutions that is a common characteristic of a failed state, if a disease starts spreading in a failed state, there would be no effective public health and safety measures, nor an effective government which would be able to contain the spread of the disease.  An epidemic which starts in a failed state has the potential to spread beyond the unprotected borders of that state and become a global epidemic, threatening the health and safety of citizens of all states.  In such a situation, international intervention is necessary to effectively control the epidemic and protect our global health.

            Part I of this paper sets out a hypothetical failed state scenario which this paper revolves its discussion of epidemics in failed states on.  Part II of this paper defines failed states and discusses examples of real states that are characterized as failed states.  Part III of this paper details the containment and intervention plan proposed by the author of this paper.  Part IV of the paper analyzes the legality of the intervention plan set forth in Part III and argues that this intervention plan is legal under international law.  Finally, Part V of the paper concludes, summarizing the key elements of the proposed intervention plans and the legal arguments supporting this plan.

I. Nation X: A Hypothetical Failed State and the Epicenter of an XDR-TB Epidemic

            In order to discuss effectively the dangers of an epidemic occurring in a failed state, and any possible intervention strategies, this paper focuses its discussion on a hypothetical failed state scenario.  The scenario centers on a hypothetical failed state, Nation X, located in sub-Saharan Africa.  For the last fifteen years, Nation X was ruled by a military dictatorship.  After a recent coup d’etat, a new government, led by a general who has named himself the President of Nation X and who is supported by a rebel military, has taken control of the state. 

            The public health care system in Nation X is already greatly strained, as the population of the state suffers from widespread AIDS.  A foreigner who has extremely drug resistant tuberculosis (“XDR-TB”) visits the state and exposes some of the natives of Nation X to XDR-TB.  XDR-TB is an airborne disease which is easily spread from person to person via coughing, sneezing, or even talking.[6]  The natives who are exposed to XDR-TB contract it and the disease starts spreading among the population of Nation X.  XDR-TB is easily spread among a population which is already suffering from AIDS and which has a poor public health care system, such as that of Nation X.[7]

            As the disease spreads rapidly through Nation X, the public health care system collapses, unable to deal with this new public health threat.  The government of Nation X cannot meet the medical needs of its population and chaos and panic ensue.  The newly formed government of Nation X is unable to exert control over the police and military forces, which desert their posts and duties, and Nation X is therefore unable to prevent the public panic and chaos that occurs.  Additionally, with no control over the military or police, the government of Nation X is unable to secure its borders or maintain order within the state.  Nation X is descends into a state of pandemonium and disorder, and is now widely considered a failed state.  

II. Failed States: Definitions and Examples of Current Failed States

            There are various definitions of what constitutes state failure, but as defined by legal scholars and policy analysts, failed states are “those countries whose governments have weakened to the point that they can no longer provide public goods, such as territorial integrity, economic infrastructure, and physical security.”[8]  Most commentators define state failure in relation to successful states, which are presumed to be the norm.[9]  While successful states are characterized by their ability to “control defined territories and populations, conduct diplomatic relations with other states, monopolize legitimate violence within their territories, and succeed in providing adequate social goods to their populations[,]” failed states are characterized by their inability to “create peace or stability for their populations . . . [,] control their territories[,] ensure economic growth or any reasonable distribution of social goods” and by their loss of “control over the means of violence.”[10] Failed states “are often characterized by massive economic inequities, warlordism, and violent competition for resources.”[11]

            While there is some disagreement over what to call failed states and how to prevent state failure, there is general agreement about some of the causes and characteristics of failed states.[12]  Scholars and analysts agree that “[s]tate failure may be brought about by civil war, severe economic depression, extreme government corruption, or a combination of these and other factors.”[13]  Failed states are also commonly characterized by “governments [which] are unable to project power within their borders” and by governments that “are unable to provide the most fundamental services that make up the state’s obligations in its contract with society: first and foremost physical security, but also basic health care, education, transportation and communications infrastructure, monetary and banking systems, and a system for resolving disputes.”[14]

            The Fund for Peace, a U.S. think tank which has published a Failed States Index since 2005, lists twelve indicators of a failed state.[15]  Those indicators, which are divided into social, economic, and political indicators, include:

1.      chronic and sustained human flight;

2.      mounting demographic pressures;

3.      legacy of vengeance-seeking group grievance or group paranoia;

4.      massive movement of refugees or internally displaced persons creating complex humanitarian emergencies;

5.       uneven economic development along group lines;

6.       sharp and/or severe economic decline;

7.       criminalization and/or delegitimization of the State;

8.       progressive deterioration of public services;

9.      suspension or arbitrary application of the rule of law and widespread violation of human rights;

10.   security apparatus operates as a “state within a state;”

11.   rise of factionalized elites; and

12.   intervention of other states or external political actors.[16] 

 

Based on these indicators, the Fund for Peace has published a Failed States Index since 2005, ranking states as either alert, warning, moderate, or sustainable states based on the indicators listed above.[17]  The 2007 Failed States Index included Iraq, Zimbabwe, Chad, Cote d’Ivoire, Democratic Republic of Congo, Afghanistan, Guinea, and the Central African Republic as alert states.[18]

            Sudan is often considered a failed state.[19]  Since the beginning of Sudan’s second civil war in 1983, at least two million Sudanese have died, 400,000 have fled to neighboring countries, and four million have been internally displaced.[20]  The Sudanese government has been unable to provide security, communications infrastructure, medical services or an education system to the population in the south, where most of the fighting has occurred.[21]  While a tentative peace agreement was reached in 2005, allowing for a government of national unity with representatives from the North and the South, the fighting still continues and the government is dominated by the North, thus making the effectiveness of this peace treaty unclear.[22]  Additionally, it is believed that al Qaeda, along with other terrorist groups, has been using Sudan as a safe haven.[23]

            Somalia is similarly characterized as a failed state.[24]  Somalia has been in a state of near anarchy ever since the President was overthrown in 1991.[25]  While a transitional government was set up in 1994, this government has no money or state institutions and has not been able to establish effective control over the territory.[26]  Additionally, there are concerns, as expressed by U.S. military officials and others, that the transitional government in Somalia “controls little territory, has poorly trained and equipped military and police forces, and has little influence in the countryside.”[27]  This has left Somalia’s 3200-mile coastline virtually unprotected, and as such, the U.S. has long suspected that Somalia, similarly to Sudan, is acting as a safe haven, and possibly a staging area, for terrorist groups including al Qaeda.[28]

            In the hypothetical laid out in Part II, Nation X is operating under a newly formed government which has not managed to gain control over the security forces in Nation X.  The public health care system has collapsed, the government is unable to meet the needs of its population, and is unable to fulfill its basic obligations, such as providing security and ensuring the health and safety of its population.  Nation X can be considered a failed state under any definition of a failed state.  The government cannot secure its territorial integrity, cannot fulfill the basic needs of its people, and has no control over the security forces in Nation X.  Nation X is a failed state.

            There is a growing recognition that failed states pose a bigger threat to national security than any threat posed by a hostile government.[29]  On the opening page of the Bush Administration’s 2002 National Security Strategy, the Bush Administration recognized that “America is now threatened less by conquering states than we are by failing ones.”[30]  The threat posed by failed states becomes exponential when a disease starts spreading in the failed state.  Any failed state, lacking the ability to “fulfill the most basic functions of a state”[31] and lacking any effective state institutions will not be able to control or stop the spread of the disease.  The ensuing epidemic poses a threat not only to the citizens of the failed state, but also to the global population as a whole.  State failure has also been recognized as a humanitarian problem, particularly in light of the fact that it is usually the population of the failed state who suffers the most from the lawlessness, economic collapse, lack of adequate medical services, and total lack of security that follows the state failure.[32] 

 III. The Intervention Plan: Martial Law, Quarantine, Isolation, and Forced Treatment

 

            On a purely pragmatic level, actions need to be taken to control the XDR-TB outbreak in Nation X and to ensure that the outbreak is contained within Nation X and does not spread to neighboring states.  In order to fashion any sort of response plan, the full ramifications of an XDR-TB epidemic need to be understood.     

            According to World Health Organization (“WHO”) statistics, one in every 3 people in the world, approximately one-third of the total world population (2 billion people), is infected with dormant tuberculosis germs (mycobacterium tuberculosis).[33]  A person only becomes ill with tuberculosis when these bacteria become active, which only occurs as a result of something that can reduce a person’s immunity, such as HIV, advanced age, or some other medical condition.[34]  If the tuberculosis is not treated, each person with active tuberculosis infects on average ten to fifteen people every year.[35]  Tuberculosis is usually treated with a course of four first-line anti-tuberculosis drugs.[36]  When these drugs are misused or mismanaged, however, a strain of multi-drug resistant tuberculosis (“MDR-TB”) can develop.[37]  MDR-TB can be treated with second-line drugs, but this treatment takes longer than normal tuberculosis treatment, and the second-line drugs are more expensive and cause more side effects.[38]  Even more troublesome, is that when these second-line drugs are misused or mismanaged, they become ineffective and extremely drug resistant tuberculosis (“XDR-TB”) can develop.[39]  XDR-TB is resistant to all first-line drugs and is resistant to at least three of the six classes of second-line drugs, and as such, is extremely difficult to treat and has a much higher mortality rate than regular tuberculosis.[40]  A study done by the CDC estimated that XDR-TB can be treated in only approximately thirty percent of affected people, if there are effective tuberculosis management programs.[41] 

            XDR-TB has been found in every single region in the world,[42] and there have been recent outbreaks of XDR-TB.  There has been an ongoing XDR-TB epidemic in South Africa, first announced by the WHO in 2006.[43]  In 2005, 544 patients were studied in Tugela Ferry, a rural town in the South African province of KwaZulu-Natal, the epicenter of the HIV/AIDS epidemic in South Africa.[44]  Of these 544 patients, 221 were diagnosed as MDR-TB cases, and 53 of those 221 patients were identified as XDR-TB cases.[45]  These 53 cases reportedly represented almost one-sixth of all known XDR-TB cases reported worldwide.[46]  Of these 53 patients, 52 died, with a median survival from the time of sputum specimen collection of 16 days.[47] Such a fatality rate, especially within such a relatively short period of time is unprecedented anywhere in the world.[48]  XDR-TB is now considered endemic in the KwaZulu-Natal province of South Africa, with cases of XDR-TB reported in at least 39 hospitals in the region and other areas of the country, and at least 30 new cases of XDR-TB detected each month in the KwaZulu-Natal province alone.[49]

            Given the recent outbreaks and incidents of XDR-TB and the fatality of XDR-TB and the possible ramifications of an XDR-TB epidemic spreading from Nation X to neighboring states and possibly to other regions of the world, it is imperative that the XDR-TB outbreak in Nation X be contained.  If, as a failed state, Nation X is unable to secure its borders and prevent natives who either have XDR-TB or were exposed to XDR-TB from fleeing the country, and is unable to provide adequate public health services to control and treat XDR-TB, other nations must intervene. 

            The first step in addressing the epidemic in Nation X would be taken by the U.N. Security Council.  Nation X would first be officially recognized as and designated a failed state by the U.N. Security Council.[50]  This resolution would be followed by another U.N. Security Council resolution authorizing a U.N.-led multinational military force to intervene in Nation X.  This Security Council resolution would detail the steps of the intervention plan and would contain the bounds of the authority of the U.N.-led multinational military force.  The U.N.-led multinational force would be sent to Nation X with the sole purpose of establishing control in Nation X so as to contain the spread of XDR-TB and ensure that treatment of citizens of Nation X who are suffering from XDR-TB can be effectively and safely carried out.  This control over the complete administration of Nation X would be temporary; authorized only as long as the XDR-TB epidemic remains uncontained.[51] 

            This U.N.-led multinational security force must be deployed to Nation X as the first step in effectively addressing the XDR-TB epidemic and the threats it creates.  As the government of Nation X is unable to secure its borders, provide security to its population, or maintain control within its borders, an outside police force must temporarily take over control of the state.  This international police force, which would consist of trained military and security personnel recruited from the U.N. member states, is necessary to secure the border of Nation X, thus insuring that any individuals that were exposed to XDR-TB will not be able to leave Nation X and possibly expose people in other states to XDR-TB.  An international police force is also necessary to establish control and security within Nation X’s borders, securing hospitals, pharmacies, treatment centers, and establishing general order among the population.  Controlling the chaos that resulted when the epidemic first broke out is essential, as is re-establishing the rule of law.  Order and security is also necessary to ensure that treatment of XDR-TB can be effectively carried out in an orderly fashion, and as the government of Nation X is unable to provide this security, an international police force must intervene and provide such security and control. 

            The U.N.-led multinational military force would establish control through the temporary imposition of martial law.[52]  Under martial law, the U.N.-led multinational military force would be able to administer the laws of Nation X, and promulgate any new laws which are necessary to establish and maintain order and control.[53]  Under the Annex to the 1907 Hague Convention on the Law and Customs of War on Land (Hague IV), an occupant must “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”[54]   As an occupying power, albeit a non-belligerent occupying power, the U.N.-led multinational military force, into whose hands the “authority of the legitimate power” has passed,[55] would “temporarily [assume] many of the executive functions of the former government, as well as some of its legislative and judicial responsibilities.”[56]  Additionally, under martial law this military force would take on the obligation of providing security and medical care to the people of Nation X.[57]

            Additionally, any effective intervention plan must provide for the quarantining and mandatory treatment of all individuals infected with XDR-TB.  Any individuals who are already infected with XDR-TB and any individuals that might have been exposed to XDR-TB must be separated and kept isolated from the rest of the population.  Without any sort of containment of these individuals, XDR-TB will just keep spreading among the population.[58]  Additionally, all individuals already infected with XDR-TB must immediately undergo any possible treatment.  While XDR-TB is extremely difficult to treat, an effort must be made, in hopes that some infected individuals will be successfully treated, and will thus no longer act as a source of exposure.  This treatment must be carried out, even if it is against the patient’s wishes.[59]  The epidemic and threat it poses must take precedence over some individual civil rights, and as thus, treatment must be mandatory, and must be carried out even if it is involuntary.[60]  Additionally, patients undergoing treatment, for any form of tuberculosis, must be closely monitored to ensure that they are following their treatment plan.  This is especially important with XDR-TB, since MDR-TB and XDR-TB result when tuberculosis drugs are misused or mismanaged.[61]  Additionally, as the World Health Organization recognized, “the risk of spread [of XDR-TB] will be reduced and eventually eliminated if infectious patients receive proper treatment.”[62] 

            Such an intervention plan will necessarily infringe upon state sovereignty and individual human rights, but such infringements must be tolerated given the scenario posed by the hypothetical.  Given the possible threat that the epidemic creates, intervention by other nations is necessary, as is the temporary restriction upon personal liberties and civil rights.  Any proposed intervention plan cannot be effective without including an international security force, quarantine, isolation and mandatory treatment as key elements.

IV. The Legality of the Proposed Intervention Plan

            A. The legality of the Intervention by the U.N.-led Multinational Military Force

            Article 2(4) of the United Nations Charter prohibits the use of force against the territorial integrity or political independence of any state, or in a manner inconsistent with the Purposes of the United Nations.[63]  An international military force establishing temporary martial law within Nation X is not in contradiction to Article 2(4).  First, Nation X is a failed state.  It arguably has no territorial integrity to violate, as the government of Nation X is unable to control or secure its borders.  “A failed state by definition does not exercise meaningful control over its borders or territory.”[64]  As such, the use of military force in a failed state, especially the use of such force for the very limited purpose of controlling an epidemic, “would not be a violation of a failed state’s political independence since no functioning political decision-making process exists.”[65] 

            Furthermore, scholars have argued that in the context of the war on terror, a limited use of force targeting a terrorist organization in another state would not truly violate that state’s territorial integrity or political independence because such a limited use of force is not directed against the persons or property of the host country, is not designed to gain or hold territory, and does not seek to overthrow or otherwise influence the nature of the host government.[66]  A similar argument can be made in justifying the multinational intervention force in Nation X.  This military force seeks only to establish temporary control over the state in order to control and stop the spread of XDR-TB, since the government of Nation X is unable to control the epidemic or secure its borders and provide for the safety and health of its people.  The multinational military intervention force does not seek to gain land, overthrow the government, or otherwise disrupt the territorial integrity or political independence of Nation X.  Additionally, the intervention force and its goals are not inconsistent with the Purposes of the United Nations.  An epidemic of a disease as easily spread and fatal as XDR-TB poses a grave threat to international public health, and as such can be viewed as a threat to international peace and security.  Under the United Nations Charter, the U.N. Security Council has the authority to deal with threats to international peace and security.  A multinational military force sent into Nation X to establish temporary order over the anarchy in Nation X and to control and treat the XDR-TB epidemic is an appropriate means of addressing this threat to international peace and security.

            It can thus be argued, as it is in the war on terror context, that the U.N.-led multi-national force would be carrying out a function that the government of the failed state would be obligated to fulfill, if it was capable of doing so.[67]  States have an obligation to provide security and basic needs to their population.  The multinational intervention force would only be doing what Nation X is obligated but unable to do. 

            Furthermore, incursions upon state sovereignty have been previously authorized in the context of ensuring the global public health.  In 2005, the WHO approved revisions to the 1969 International Health Regulations.[68]  These revisions, referred to as the IRHs 2005, set out the duties and obligations of member states[69] when dealing with a “public health emergency of international concern.”[70]  Under the IRHs 2005, a public health emergency of international concern is defined as “an extraordinary event which is determined, as provided in [the] Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response.”[71]  While the IRHs 2005 recognize that “States have . . . the sovereign right to legislate and to implement legislation in pursuance of their health policies,”[72] the IRHs 2005 also greatly expand the WHO’s authority to unilaterally address a potential public health emergency of international concern.[73]  Under the IRHs 2005, the WHO decides whether a public health emergency of international concern exists, and decides for its member states which actions must be implemented to deal with the public health concern of international concern.[74]

            One scholar has argued that “[t]he revisions to the IHRs have effectively transformed the WHO from a coordinator of public health services into an international health governance or regulatory body with powers so vast and so sweeping that traditional notions of state sovereignty may no longer exist in the international law context.”[75]  Even if the IRHs 2005 do not represent a complete abrogation of state sovereignty, at the very least the IRHs 2005 illustrate a willingness to infringe upon traditional notions of state sovereignty when a potential threat to international public health exists.

            B. The Legality of Isolation, Quarantine, and Forced Treatment

            In the context of public health, there is a distinction between isolation and quarantine.[76]  Isolation refers to the separation of a patient known to have an infectious disease from otherwise healthy people, while quarantine refers to the confinement of someone who has been exposed to an infectious disease but is asymptomatic.[77] A person under quarantine is restricted in his or her movements, separated from other people, and kept in a restricted area, due to fears that if indeed that person is actually infected, they might expose other people.[78]  Although isolation is accepted as an effective means of controlling an infectious disease and is generally accepted as an appropriate means of protecting public health,[79] quarantine, although it was at one time in history a common measure used to protect public healthy, is usually regarded as ineffective and suspect.[80]  Quarantine was viewed as an arbitrary use of state power which was used in a discriminatory manner to restrict the movement of minorities and the poor.[81] 

            The outbreak of Severe Acute Respiratory Syndrome (“SARS”) in 2003 was the first time in fifty years that the world saw widespread use of quarantine.[82] SARS was initially reported in Guangdong Province, China in 2002 but quickly spread to numerous cities and countries worldwide via international travelers.[83] By the time the SARS crises had been controlled in the summer of 2003, 8,098 people had been diagnosed with SARS and 744 deaths were attributed to SARS.[84]  Due to the immediate need to control the spread of SARS, numerous cities implemented quarantine and isolation.[85]  Toronto, which has a population of approximately three million people, quarantined approximately 30,000 people; Hong Kong, with a population of approximately seven million people, quarantined 1,282 individuals; Shanghai, which has a population of approximately eighteen million people and was for the most part isolated from the SARS epidemic, quarantined 4,090 individuals; and Beijing, with a population of approximately eighteen million people, quarantined approximately 30,173 people.[86] These quarantines occurred over a four month period.[87]

            Although the WHO did not recommend the use of large-scale stringent quarantine during the SARS crisis, it did leave the use of quarantine up to the discretion of local jurisdictions.[88]  Quarantine has also been used to control other public health epidemics such as the outbreak of tubercu           losis in New York in the early 1990s.[89]  The New York City Department of Health implemented various measures to control the tuberculosis outbreak, including detention, which lasted anywhere from 3 to 28 weeks, treatment under direct observation, compelled examinations, compelled completion of treatment, and detention for mandatory treatment.[90]  New York City was successful in controlling the tuberculosis outbreak using these measures.[91]

            While quarantine, isolation and forced treatment arguably infringe upon an individual’s personal liberties and human rights, these rights must be limited in the face of a potential worldwide health epidemic. This is particularly true in instances where a person who has the disease or has been exposed to the disease refuses to restrict their movement or undergo treatment.  The WHO itself has recognized that

            if a patient willfully refuses treatment and, as a result, is a danger to the public, the          serious threat posed by XDR-TB means that limiting that individual’s human rights may be necessary to protect the wider public.  Therefore, interference with freedom of      movement when instituting quarantine or isolation for a communicable disease such as...             XDR-TB may be necessary for the public good, and could be considered legitimate under         international human rights law[92] 

 

While the WHO also noted that involuntary quarantine or isolation must only be used as a last resort,[93] if a person who either has XDR-TB or has been exposed to XDR-TB refuses to voluntary go into isolation or quarantine, involuntary isolation or quarantine may be called for, especially in light of the threat posed by an XDR-TB epidemic.

            According to the WHO, in order for the restriction of human rights due to isolation and quarantine to be legal under international law, however, necessary protections must be met.[94] As stated by the WHO, in order to determine whether these protections exist, each one of the five criteria of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights[95] must be met, but should be of a limited duration and subject to review and appeal.[96] The five criteria of the Siracusa Principles are as follows:

            (1) The restriction is provided for and carried out in accordance with the law;

            (2) The restriction is in the interest of a legitimate objective of general interest;

            (3) The restriction is strictly necessary in a democratic society to achieve the objective;

            (4) There are no less intrusive and restrictive means available to reach the same objective;

            (5) The restriction is based on scientific evidence and not drafted or imposed arbitrarily                    i.e. in an unreasonable or otherwise discriminatory manner.[97]

 

The proposed intervention plan would meet all of these principles if involuntary isolation, quarantine, and treatment became necessary.  As section 25 of the Siracusa Principles holds, “Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population.  These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.”[98]  XDR-TB, given the ease by which it can spread, the difficulty in treating it, and thus its high mortality rate, certainly poses a severe threat to not only the population of Nation X, but also to the global population.  The measures used in the Intervention Plan are specifically aimed at controlling the outbreak of XDR-TB in Nation X and preventing the spread of XDR-TB beyond the borders of Nation X.  This plan would additionally be based on scientific evidence as to the effectiveness of isolation and quarantine, and would apply to those people whom are believed to either have or have been exposed to XDR-TB based on scientific evidence.  It would not in any way be implemented in a discriminatory or arbitrary manner.  Additionally, the least restrictive means of preventing the spread of this potentially catastrophic disease is to isolate those who are already infected and to quarantine those who may have been exposed to the disease.[99] 

            Furthermore, under martial law, the U.N.-led multinational intervention force would able to promulgate national laws that ensure that mandatory isolation, quarantine and treatment would be permissible under national law, if Nation X did not already have such laws in existence.[100]  Many nations have national laws allowing for mandatory quarantine and isolation. [101]  In connection with such laws, the judiciary is often given the authority to issue legally enforceable orders compelling mandatory isolation or quarantine, if doing so is in the public interest.[102] Furthermore, it has been recognized that while a state’s “Bill of Rights may bestow a range of human rights on individuals, these rights can usually be restricted if doing so is reasonable and justifiable.”[103]

            Involuntary quarantine and isolation may not even become an issue, if past practice can be relied on.  While there was widespread quarantine imposed in connection to the SARS epidemic, most of the individuals who were affected by quarantine, willingly complied with quarantine orders.[104]  Quarantine is considered voluntary if the individual willingly complies with a quarantine requirement or order.[105]  Quarantine is only considered involuntary if the public health officials need to resort to legal resources to enforce the quarantine requirement.[106]  In Toronto, while approximately 30,000 people who subjected to quarantine, only 29 individuals were considered noncompliant and were issued legally enforceable quarantine orders.[107]  In Hong Kong, only 26 noncompliance orders were issued.[108]  As such, there will be no real concern over the infringement of individual rights if individuals are willing to temporarily allow restrictions on these rights in order to serve the greater good and ensure the public health and welfare of society as a whole.

            However, it must be recognized that quarantine involves an element of reciprocity.  “Quarantines are measures designed to benefit a community as a whole whilst imposing costs on particular individuals.”[109]  It is thus important to recognize that society cannot impose the burden of ensuring its health on the individuals subject to quarantine but must help bear the burden.  Measures to ensure that any individual subject to quarantine is not bearing the entire burden mitigate some of the human rights concerns at issue.  It is important to ensure that those legally detained and isolated are treated with the utmost respect and are detained in humane living quarters.  Quarantine and isolation measures essentially ask some members of the public to assume the burden of ensuring the safety and health of the public at large, and as such, officials must ensure that these individuals are treated with dignity and respect.[110]  In arguing that individuals have a duty not to infect others, Harris and Holm stressed that this duty is one which society cannot expect people to abide by unless “they live in a community that does not leave them with all the burdens involved in discharging this duty.”[111]

            One such measure which spreads the burden quarantine imposes is compensating the individuals who are subjected to quarantine.  While there is perhaps no adequate compensation for the emotional hardship that might occur, or for the restriction on one’s freedom of movement or association, the financial burden that is assumed by individuals subjected to quarantine can be compensated.  In Toronto, the Canadian government recognized that, under the principle of reciprocity, “society has a duty to provide support and other alternatives to those whose rights have been infringed under quarantine,” and accordingly, recognized that the financial burden that goes along with quarantine must be borne by society as a whole.[112]  This principle of reciprocity was similarly recognized in Shanghai, where the government passed laws insuring that anyone who was subject to quarantine would not lose their job and requiring employers to compensate their employees full wage for the time they were quarantined.[113]  Hong Kong also made an effort to spread the burden of quarantine, by passing measures requiring, as an example, the wearing of face masks in public, which was an attempt to diminish any social stigma that might be borne by people who were quarantined.[114]

            Compensation in connection with quarantine or isolation not only helps mitigate the human rights concerns by helping to achieve a balance between the pursuit of public health goals and individual rights, but also helps guarantee that people will not feel the need to choose between their jobs and livelihoods and their own health, and the health of those surrounding them.  This can be essential to controlling any epidemic.  One of the reasons for the XDR-TB epidemic occurring in South Africa was that South Africans were essentially forced to choose between hospitalization, which in the case of MDR-TB and XDR-TB can last between 18-24 months, and their jobs and/or welfare benefits.[115]  Approximately 10 million South Africans are dependent on some form of government welfare, and while South Africa does not have a formal health-care system, South Africans who cannot afford medical treatment are able to receive free treatment in the public sector.[116]  This free treatment comes at a high price however; in accordance with current government policies, South Africans who receive hospital treatment at the state’s expense lose their social welfare benefits for the duration of the hospitalization.[117]  Accordingly, when the XDR-TB outbreak first occurred, many South Africans, facing a loss of welfare benefits for up to 18-24 months, chose not to stay in hospitals, where their treatment could be monitored.[118]  This lack of supervised treatment only feeds an epidemic, as these individuals fail to receive appropriate treatment, may default on their treatment regimen, and all the while, are going about their lives, interacting with and exposing others.[119]

            Any restrictions on individual human rights and liberty must also comply with the principle of proportionality.[120]  Any measures which infringe upon personal liberties taken in the name of protecting the public health can only comply with the principle of proportionality if it can be shown that the person whose individual liberties are being restricted “is suffering from an infectious disease, that the spread of disease is dangerous to public safety, and that the detention of the infected person is the last resort measure in order to prevent disease spread.”[121] Given the extreme risk posed by XDR-TB, the fact that it is very hard to treat, has a higher mortality rate than TB, and is easily spread, the forced quarantine, isolation and treatment of persons who either have or have been exposed to XDR-TB is an proportional response and a justifiable restriction on individual liberties.  There are no less severe measures that would ensure that the spread of XDR-TB is controlled and that people with XDR-TB undergo and properly follow their treatment regimens.

            It has recognized under international human rights law that public health emergencies can take precedence over individual rights.[122]  So long as the measures taken to control the potential epidemic are proportional to the nature of the disease at issue, are applied in a uniform, non-discriminatory manner, are non-arbitrary, and are necessary to protect public health, any infringement on individual rights is justifiable under international law.[123] As such, while “[a]ll reasonable attempts must be made to accommodate the interests of infected patients in a sensitive and humane manner,” if infected patients are uncooperative, refusing to undergo treatment or isolate themselves while they are capable of spreading the disease, such patients may “necessitate favouring the interests of the wider public over that of the patient.”[124] Even though favoring the public interest over that of the infected individual will necessarily encroach upon that individual’s self-autonomy and personal liberties, and might have human rights implications, measures employed to serve the public good “are reasonable and justifiable, and must be seen in a utilitarian perspective.”[125]

V. Conclusion

            Failed states and epidemics each independently pose a significant threat to international peace, security, and health.  When an epidemic has its origins in a failed state, however, the risk to international order and health increases exponentially.  The dangers of any infectious disease are only exacerbated when there is no government in place that has the capability of combating the spread of the disease beyond its borders.  As one scholar noted,

            [a]lthough we have faced planet-killing events such as nuclear brinkmanship during the   Cold War and mega-meteors colliding with earth in pre-history, the most imminent threat        is one we face from the globalization of infectious diseases. Leading authorities in government, medical institutions, and schools of public health have been ringing the             warning bell for over a decade about the major threats to global public health.[126]

 

In the face of such grave threats to global security and health, any action necessary to contain the spread of an infectious disease must be taken, even if stopping the spread of the disease requires action by external authorities.

            Any action that will be effective in containing an epidemic in a failed state must necessarily encompass some measure of international intervention. If the failed state does not have the capability or the necessary personnel to secure its borders and contain the spread of the disease, then the international community must step in and temporarily take over control of the failed state.  Under the temporary administration of a U.N.-led multinational military force, order and security will be restored to the failed state, and the epidemic can start to be effectively contained and treated, via the use of isolation, quarantine, and treatment programs, whether voluntary or non-voluntary.

            While the international community normally strives to respect state sovereignty and individual human rights, in the face of an epidemic in a failed state, respect for such principles must necessarily be overshadowed by the need to protect the international community.  As one scholar aptly noted, “[e]pidemics threaten the very existence of populations. They threaten the central interest of society-self-preservation.”[127] Thus, temporary restrictions on state sovereignty and individual human rights must not only be tolerated as legal and legitimate measures under international law, but must be recognized as absolutely necessary to ensure the health of the entire global community.  

 

 

 

 



[1] Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72 U. Chi. L. Rev. 1159, 1160-61 (2005).

[2] Id. at 1162.

[3] Id.

[4] Id.

[5] Ben N. Dunlap, Note, State Failure and the Use of Force in the Age of Global Terror, 27 B.C. Int’l & Comp. L. Rev. 453, 466 (2004).

[6] World Health Organization, http://www.euro.who.int/Document/Mediacentre/fs0107e.pdf (last visited Dec. 21, 2007); see also Patricia C. Kuszler, Balancing the Barriers: Exploiting and Creating Incentives to Promote Development of New Tuberculosis Treatments, 71 Wash. L. Rev. 919, 940 (1996) (stating that “[t]he principle risk behavior for acquiring TB [tuberculosis] is breathing”).

[7] World Health Organization, http://www.euro.who.int/Document/Mediacentre/fs0107e.pdf (last visited Dec. 21, 2007).  While it is believed that XDR-TB cannot be easily spread among a healthy population, the epidemiology of XDR-TB is still unknown and, therefore, for purposes of this paper, it is assumed that XDR-TB can be spread among a healthy population, although not as easily as it can be spread among a population with weakened immune systems.

[8] Dunlap, supra note 5, at 454; see also Crisis States Research Centre, http://www.crisisstates.com/download/drc/FailedState.pdf (last visited Dec. 21, 2007).

[9] Brooks, supra note 1, at 1160.

[10] Id.

[11] Id.

[12] Dunlap, supra note 5, at 458.

[13] Id.

[14] Id.

[15] Fund for Peace, www.fundforpeace.org (follow “Failed States Index” hyperlink; then follow “Failed States Index 2007” hyperlink) (last visited Dec. 21, 2007).

[16] Id.

[17] Id.

[18] Id.

[19] Dunlap, supra note 5, at 458; see also Fund for Peace, supra note 15.

[20] Dunlap, supra note 5, at 458.

[21] Dunlap, supra note 5, at 458.

[22] Fund for Peace, www.fundforpeace.org  (follow “Failed States Index” hyperlink; then follow “Failed States Index 2007” hyperlink; then follow “Country Profiles R-Z” hyperlink) (last visited Dec. 21, 2007).

[23] Dunlap, supra note 5, at 459.

[24] Id.

[25] Fund for Peace, supra note 22.

[26] Id.

[27] Dunlap, supra note 5, at 459.

[28] Id.

[29] Dunlap, supra note 5, at 454.

[30] See THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 1, 1 (2002)

[31] Dunlap, supra note 5, at 458.

[32] Id. at 459.

[33] WHO-Frequently asked questions-XDR-TB; http://www.who.int/tb/challenges/xdr/faqs/en/ (last visited Dec. 21, 2007).

[34] Id.

[35] WHO, XDR-TB, http://www.who.int/tb/challenges/xdr/en/index.html (last visited Dec. 21, 2007).

[36] WHO-Frequently asked questions-XDR-TB, supra note 33

[37] Id.

[38] Id.

[39] Id.

[40] CDC, Extensively-Drug Resistant Tuberculosis (XDR TB), http://www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm (last visited Dec. 21, 2007). Studies by Italian researchers of all culture-confirmed tuberculosis cases diagnosed between 2003 and 2006 by national TB reference centers resulted in the discovery of links between XDR-TB and a five-fold increase in the risk of death, longer hospitalization, and longer treatment duration.  WHO, “XDR-TB: extensively drug-resistant tuberculosis, March 2007,” http://www.who.int/tb/challenges/xdr/news_mar07.pdf (last visited Dec. 21, 2007).

[41] CDC, Fact Sheet, Extremely-drug Resistant Tuberculosis (XDR TB), http://www.cdc.gov/tb/pubs/tbfactsheets/xdrtb.htm (last visited Dec. 21, 2007); see also WHO-Frequently asked questions-XDR-TB, supra note 33.

[42] WHO-Frequently asked questions-XDR-TB, supra note 33; see also WHO, “XDR-TB: extensively drug-resistant tuberculosis, March 2007,” http://www.who.int/tb/challenges/xdr/news_mar07.pdf (stating that the presence of XDR-TB has been confirmed in all G8 countries) (last visited Dec. 21, 2007).

[43] Jerome Amir Singh, Ross Upshur & Nesri Padayatchi, XDR-TB in South Africa: No Time for Denial or Complacency, PLoS Med. 2007 January; 4(1), e50; http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1779818 (last visited Dec. 21, 2007).

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id. While a person only needs to breathe in a small number of TB germs to be infected, the rate at which TB spreads depends on many factors including “the number and concentration of infectious people in any one place together with the presence of people with a higher risk of being infected.” WHO-Frequently asked questions-XDR-TB, supra note 33.The risk of becoming infected with TB increases the longer the time an uninfected person spends in the same room as an infected person, with poor ventilation, and where there is a high concentration of TB bacteria, such as in closed environments, e.g. overcrowded hospitals.  Id. 

[50] This resolution is necessary to avoid the possibility of setting a precedent of allowing states to unilaterally declare another state a failed state and then seek to use military force to control a perceived threat.  In determining the possible status of a state as a failed state, the U.N. Security Council would “weigh the totality of the circumstances in a given state, considering the absence or presence of traditional factors that determine statehood, such as defined territory, the capacity to enter into relations with other states, an identifiable population, as well as an ability to stand on its own.” Dunlap, supra note 5, at 472.

[51] Although it would be temporary, controlling the XDR-TB epidemic may take several years.  The Security Council Resolution would authorize the multinational military force to remain in Nation X and exert control over the State until the epidemic is controlled and there is no longer a threat that the disease will become a global epidemic.

[52] The U.N.-led multinational military force would essentially be a cross between a U.N. peacekeeping force, as it would be a non-belligerent occupier, and a belligerent military occupier in that it would establish martial law and temporarily administer and control the governance of Nation X.

[53] Michal N. Schmitt, The Law of Belligerent Occupation (April 15, 2003), http://www.crimesofwar.org/special/Iraq/news-Iraq5.html (last visited Dec. 21, 2007).

[54] Hague Convention IV, the Laws and Customs of War on Land, Annex to the Convention, Art 43 (1907), http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm (last visited Dec. 21, 2007).

[55] See Schmitt, supra note 53.

[56] See id.

[57] See id. (noting that “[o]ccupying powers are responsible for the care of the civilian population, including its overall health and hygiene” and must “to the ‘fullest extent of the means available to it,’ ensure the population receives adequate food, water, and medical treatment”).

[58] See WHO-Frequently Asked questions-XDR-TB, supra, note 33 (emphasizing that in order to prevent XDR-TB, all TB patients must undergo proper diagnosis and treatment, patients must carry out their treatments exactly as prescribed, and that contact between infected TB patients and otherwise healthy people must be minimized, especially in the early stages of treatment before the treatment has had a chance to reduce the infectiousness).

[59] Singh, et al., supra note 43 (arguing that “[t]he use of involuntary detention may legitimately be countenanced as a means to assure isolation and prevent infected individuals possibly spreading infection to others”).

[60] See WHO, Guidance on human rights and involuntary detention for XDR-TB control, http://www.who.int/tb/xdr/involuntary_treatment.en/index.html (last visited on Dec. 21, 2007) (recognizing that if a patient willfully refuses treatment, a limitation on that individual’s human rights may be necessary and justified under international human rights, in light of the seriousness of the disease and the threat that individual poses to the public).

[61] In South Africa, approximately 15% of TB patients default on the first-line six-month treatment, while almost one-third of TB patients default on second-line treatment.  Singh, et al., supra note 43.

[62] WHO, Frequently asked questions-XDR-TB, supra note 33.

[63] Dunlap, supra note 5, at 467.

[64] Dunlap, supra note 5, at 469.

[65] Id.

[66] Id. at 467-68

[67] Dunlap, supra note 5, at 470.

[68] WHO News Release, World Health Assembly Adopts New International Health Regulations: New Rules Govern National and International Response to Disease Outbreaks (May 23, 2005), http://www.who.int/mediacentre/news/releases/2005/pr_wha03/en/index.html (last visited Dec. 21, 2007).

[69] Under the WHO Constitution, all World Health Assembly-adopted regulations are binding on all WHO member states, with the exception of member states which notify the Director-General of reservations or rejections within an appropriate time.  WHO Const. (1948), Art. 22, http://w3.whosea.org/LinkFiles/About_SEARO_const.pdf (last visited Dec. 21, 2007).

[70] See Eric Mack, The World Health Organization’s New International Health Regulations: Incursion on State Sovereignty and Ill-fated Response to Global Health Issues, 7 Chi. J. Int’l L. 365 (2006).

[71] World Health Organization: Revision of the International Health Regulations, May 23, 2006, Art.1, 44 I.L.M. 1013 (2006); available at http://www.who.int/gb/ebwha/pdf_files/WHA58/A58_55-en.pdf (last visited Dec. 21, 2007).

[72] Id. at *1018.

[73] See Mack, supra note 70.

[74] Mack, supra note 70, at 377.

[75] Id.

[76] Lesley A. Jacobs, Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto, 41 Law & Soc’y Rev. 511, 513; see also Eric S. Janus, AIDS and the Law: Setting and Evaluating Threshold Standards for Coercive Public Health Intervention, 14 Wm. Mitchell L. Rev. 503, 504 n.9 (1988).

[77] Jacobs, supra note 76, at 513.

[78] Id.

[79] Id.

[80] Jacobs, supra note 76, at 519.

[81] Id.

[82] Id. at 513.

[83] Id. at 512.

[84] Id.

[85] Id. at 513.

[86] Id.

[87] Id. at 515.  It is unclear whether any individuals were quarantined for the full four months.

[88] Id. at 519.

[89] MR Gasner, KL Maw, GE Feldman, PI Fujiwara & TR Frieden, The Use of Legal Action in New York City to ensure treatment of Tuberculosis, N. Engl. J. Med. 1999 Feb 4;340(5):359-66 (noting that the commissioner of health had the authority to “issue orders compelling a person to be examined for tuberculosis, to complete treatment, to receive treatment under direct observation, or to be detained for treatment”).

[90] Id.

[91] Singh, et al., supra note 43.

[92] WHO Guidance on human rights and involuntary detention for XDR-TB control, supra note 60; see also Singh, et al., supra note 43 (arguing that “[t]he use of involuntary detention may legitimately be countenanced as a means to assure isolation and prevent infected individuals possibly spreading infection to others”).

[93] WHO Guidance on human rights and involuntary detention for XDR-TB control, supra note 60.

[94] Id.

[95] The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (“ICCPR”) is a non-treaty standard which was adopted in May 1984 by a group of international human rights experts convened by several non-governmental groups in order to consider the limitation and restriction provisions of the ICCPR, and to set forth a uniform interpretation of those provisions.  See Lawyers’ Rights Watch Canada, http://www.lrwc.org/standard.php (last visited Dec. 21, 2007).  See also Singh, et al., supra note 43.

[96] Singh, et al., supra note 43.

[97] United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985), http://www1.umn.edu/humanrts/instree/siracusaprinciples.html (last visited Dec. 21, 2007).

[98] Id.

[99] See Singh, et al., supra note 43 (arguing that “the forced isolation and confinement of individuals infected with XDR-TB . . . may be an appropriate and proportional response in defined situations, given the extreme risk posed by . . . [XDR-TB] and the fact that less severe measures may be insufficient to safeguard public interest”).

[100] See Schmitt, supra note 53 (recognizing that while occupying powers must respect the laws already in place in the occupied state, occupying powers can issue regulations, including penal regulations, which are necessary for the occupier to carry out its obligations under martial law, including the obligation to provide for the care and overall health of the civilian population of the occupied territory).

[101] See The United Kingdom Public Health (Control of Disease) Act of 1984, § 37 (allowing detention of patients who pose a serious risk for infection to others); See also Article 5(1)(e) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides for “the lawful detention of persons for the prevention of the spreading of infectious diseases.”

[102] Singh, et al., supra note 43.

[103] Singh, et al., supra note 43.

[104] Jacobs, supra note 76, at 525.

[105] Id.

[106] Id.  Although quarantine is technically voluntary if the person willingly complies with the quarantine order, there is an absence of real choice, since most quarantine orders carry some penalty for noncompliance, such as a $5000 fine in Toronto.  Id.

[107] Id.

[108] Id.

[109] Id. at 523.

[110] Singh, et al., supra note 43; see also Jacobs, supra note 76, at 523-524.

[111] See Singh, et al., supra note 43 (citing Harris J, Holm S., Is there a moral obligation not to infect others? BMJ. 1995; 311:1215-1217. [PubMed]).

[112] Jacobs, supra note 76, at 523.

[113] Id. at 527-28.

[114] Id. at 531-32.

[115] Singh, et al., supra note 43.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] See Singh, et al., supra note 43; see also Enhorn v. Sweden, 2005 E.C.H.R. 56529/00 (2005) (European Court of Human Rights held that any involuntary detention must not only meet the principle of proportionality, but also the requirement that there be an “absence of arbitrariness” in the sense that other less severe measures have been considered but were found to be insufficient to protect the individual being detained and the public.

[121] Singh, et al., supra note 43.

[122] Id. (stating that “[h]uman rights doctrine also recognizes the limitation of many rights in a public health emergency, provided the measures employed are legitimate, non-arbitrary, publicly rendered, and necessary”).

[123] Id.

[124] Id.

[125] Id. (concluding that “[u]ltimately in such crises, the interests of public health must prevail over the rights of the individual”).

[126] Christopher-Paul Milne, Racing the Globalization of Infectious Diseases: Lessons From the Tortoise and the Hare, 11 New Eng. J. Int’l & Comp. L. 1, 2 (2004).

[127] Janus, supra note 76, at 513.