Chapter eight (bio)terrorism a. Introduction

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In the immediate aftermath of 9/11 it was easy for human rights advocates and civil libertarians to despair. Congress almost immediately passed the Orwellian-named USA Patriot Act, and authorized an international (and 1984-like perpetual) global war on terror, and the Bush Administration also announced that it would disregard not only the United Nations but also fundamental international human rights and humanitarian law as expressed in the Geneva Conventions.

More recently, however, the tide seems to be changing, and many governmental actions are now met with considerable skepticism and even active resistance. The color-coded terrorist warning system has been all but abandoned as too vague to do any more than scare the public. A proposal to enlist mail carriers and TV repair persons as “tipsters” (the so-called “tips” program) has been abandoned. Duct tape and plastic sheeting remain punch lines in jokes about personal protection from chemical and biological agents.

We continue to be bombarded with bioterrrorism doomsday scenarios, although the major terrorist threats are not from biological agents. Rather they are from conventional weapons (e.g., firearms and bombs—including “dirty bombs,” conventional explosives containing radioactive material), delivered either in trucks or by individual suicide bombers, as evidenced by terrorist activities in Israel for decades, by insurgent attacks in Iraq, and by terrorists worldwide. These create panic, but the most dangerous weapons are not chemical or biological, but nuclear. Our government knows this. Although there were many inconsistent rationales given for going to war with Iraq, no one suggested it was because they possessed chemical or biological weapons: we have known about these weapons for more than two decades, and Iraq has actually used their chemical weapons on both civilian and military targets. It was the future prospect of possessing nuclear weapons that ultimately moved us to war.

Bioterrorism, nonetheless, continues to be hyped beyond all scientific or historic reality, even in the public health community which should know better. A leading public health lawyer, for example, has asserted that “a single gram of crystalline botulinum toxin, evenly disperse and inhaled, could kill more than 1 million people.” But, when looking at actual data, that same lawyer admits that in fact, when Aum Shinrikyo, the Japanese terrorist cult, actually “attempted to disperse aerosolized botulinum toxin both in Tokyo and at several military installations in Japan” the result was not millions dead, or even thousands or hundreds: rather all of these attacks “failed to kill anyone.” Likewise, it has been asserted that the release of 100 kilograms of aerosolized anthrax over Washington, D.C. could kill up to three million people. The real anthrax attacks through the U.S. mails were highly effective in sowing terror in the populations, but resulted in only 5 deaths (the number killed in American hospitals by negligence every 30 minutes, or on our nation’s highways every hour).

The scariest scenario involves smallpox because, unlike botulinum or anthrax, smallpox can be transmitted from one person to another. This is why the Bush administration used the threat of a smallpox attack from Iraq as one reason for us to fear Iraq, and as the almost sole justification for its massive three-phase smallpox vaccination program. That now-abandoned program was a public policy and public relations disaster, vaccinating only about 4,000 of the initially-proposed 500,000 health care workers the government planned to have vaccinated with the smallpox vaccine during phase one (phase two would have encompassed up to 10 million first responders and public safety personnel, and phase three would have included all willing civilians).

I think the major reason is that the administration failed to persuade physicians and nurses that the known risks of serious side effects with the vaccine were justified given the fact that there is no evidence that Iraq (or anyone else) has both smallpox virus and the wish to use it in a terrorist attack. The information provided on this issue to the physicians and nurses was in the same spirit as the Iraq nuclear threat information, except that it contained no facts at all, not even misleading or phony ones. ***
Bioterrorism and Epidemics

But what about a “real” epidemic, such as a new, worldwide pandemic? A repeat of the 1918 flu epidemic is likely at some point, and could prove devastating. We can and should produce vaccines against the annual flu epidemics. Our new emphasis on bioterrorism, however, has actually drained public health resources away from this effective vaccine. As the World Health Organization warned in late-2004, we need much better planning, and international cooperation, to prepare for an influenza pandemic. Instead we are diverting funds away from this traditional public health concern which involves tens of thousands of deaths a year in the U.S. alone, and a predictable worldwide pandemic at some point, to trying to protect against an extremely unlikely bioterrorist attack. And it is here that we can determine whether or not “dual use” is a reality or just a marketing slogan. I agree with those who say that public health infrastructure generally must be improved for the sake of the nation’s health. But where I disagree is on what effect bioterrorism preparation will actually have on public health infrastructure.

I wrongly and naively (it turns out) expected the federal government to provide increased funding for public health in the wake of 9/11. There has been some funding for bioterrorism, but mostly public health departments have been struggling with more unfunded federal mandates and suggestions, and have had to actually divert funds from public health programs we know work to save lives and improve health, to bioterrorism preparation which has little or no public health payoff.

My own state of Massachusetts, for example, always a national leader in public health, has made major cuts in tobacco control, domestic violence prevention, and immunizations against pneumonia and hepatitis A and B. Public health dollars have shrunken $30 million in two years, during which time Massachusetts has received $21 million for bioterrorism-related activities, some of which could be categorized as “dual-use.” Public health expert David Ozonoff of the Boston University School of Public Health accurately describes what is happening: “The whole bioterrorism initiative and what it’s doing to public health is a cancer, it’s hollowing out public health from within…This is a catastrophe for American public health.” This was dramatically demonstrated nationally in the fall of 2004 when the U.S. experienced a shortage of flu vaccine and was forced to ration it to Americans most at risk of death and hospitalization from the flu. Cartoonist Matt Davies caught the irony in his cartoon picturing a citizen coming to the door of the “Homeland Security Bio-Terror Readiness Unit” only to be greeted by a note pinned to the door reading, “Out with the Flu.”

Other public health experts have put the weakening of public health in even most disturbing terms, noting “Worse, in response to bioterrorism preparedness, public health institutions are being reorganized along a military or police model that subverts the relationships between public health providers and the communities they serve.” To the extent that these experts are correct, and I think they are, exaggerated fear of bioterrorism is resulting in overreaction that is already counterproductive in that it is harming both public health’s effectiveness and its relationship with the communities public health serves.

Exaggerated risks produce extreme responses that are based more on fear than facts, so it is not surprisingly that they have unintended consequences. Public health planning should be based on science not free-floating anxiety and fear. Instead of using the tools of public health, especially epidemiology to gather data and risk-assessment, to identify most likely risks and work on them, our government seems to have adopted the bizarre notion that all threats are equal and that all states and localities should equally prepare for all of them. This philosophy has produced two interrelated epidemics in the U.S. today: an epidemic of fear, and an epidemic of security screening.

In the midst of concern over bioterrorism, but after the SARS epidemic, the New York Academy of Medicine did a survey of the American public asking how they would respond to two types of terrorist attacks: smallpox and a dirty bomb. Published in September 2004, the surveys results support two lessons that were apparent on 9/11: (1) the primary concern Americans have in a crisis is the safety of their family members; and (2) the most important predictor of whether they will follow the advice of public officials is if they trust them to be telling the truth and to be guided by their welfare. Specifically, the survey found that only 40% of Americans would go to a vaccination site in a smallpox outbreak if told to do so, and only 60% would shelter in place for as long as they were told to in the event of a dirty bomb explosion.

The reasons given for not following advice are instructive. In the smallpox scenario, 60% had worries about the safety of the vaccine itself—twice as many who worried about getting smallpox themselves. The respondents also suggested ways to make them more likely to cooperate. For smallpox, overwhelming majorities (94% and 88%) wanted to speak with someone who knew a lot about smallpox and who they trusted to want what was best for them. A physician not working for the government would fit the bill. In the dirty bomb case, the primary concern respondents had was the safety of their family members. 75% of those who would not shelter in place said they would do so if they could communicate with people they care about or if they knew they were safe. Overall the study concluded that “people are more likely to follow official instructions when they have a lot of trust in what officials tell them to do and are confident that their community is prepared to meet their needs if a terrorist attack occurs.”

These survey results are consistent with past bioterrorist exercises as well. As Senator Sam Nunn, who played the part of the president in the smallpox exercise, Dark Winter, in which mass quarantine failed: “There is no force on earth that can make Americans do something that they do not believe is in their own best interests and that of their families.”

Given the data from real world events, public opinion surveys, and mock exercises, it is quite remarkable that some public health officials are still at home with draconian 19th century quarantine and compulsory treatment methods. This is likely because public health officials, who believe all their actions are designed to protect the public, are much more concerned with false positives (failing to treat of detain someone who actually has a communicable disease) than with false negatives (detaining someone who actually does not have a communicable disease), and believe that brute force can effectively control the behavior of Americans in an epidemic or bioterrorist attack. To the extent this faith in coercion remains alive in the public health community, it is predictable that public health officials with the power to arbitrarily quarantine large numbers of people in an emergency will use it immediately, whether it is warranted or not. From their perspective, protecting public health is more important than protecting liberty, and as public health officials they may really believe they have nothing to lose. But abuse of power will predictably destroy public trust and instill panic. Even totalitarian dictatorships like China cannot control their populations in epidemics by fear alone in the 21st century.

It cannot be emphasized enough that the primary goal and purpose of public health is prevention of disease in the first place. In the case of bioterrorism, this means prevention of the attack is much more important (to public health) than responding to it after the fact. And contemporary public health prevention of epidemics and bioterrorism is not primarily a local or state issue at all, but is fundamentally a global security issue that must be dealt with by the community of nations working together. National laws and treaties, with realistic inspection and sanctions, devoted to preventing the development and production of biological weapons are the most important tool in the prevention of bioterrorism. We are also right to want to modernize the World Health Organization’s International Health Regulations: but, as WHO recognizes, to be effective revised regulations must be founded on respecting and protecting human rights, not trampling them.

State laws, no matter what they say, and no matter what the CDC says, simply cannot prevent or control bioterrorism. Moreover, by seeming to grant unconstitutional power over citizens lives and liberty, bad state public health emergency laws undermine public trust and are thus a danger to public health itself. Florida’s crude summary of CDC’s-sponsored “model act” which seeks to trade off human rights for safety and security, provides the country’s starkest example, and thus helps illustrate why honoring rather than destroying human rights is essential to effective public health action in the 21st century. *** [for material from this article on the U.S. reaction to SARS, and the Florida statute based on the model act, see Chapter 3]


At the outset of the 21st century bioterrorism, although only one threat to public health, can be the catalyst to effectively federalize and integrate much of what is now uncoordinated and piecemeal state and local public health programs. This should include a renewed effort for national health insurance, national licensure for physicians, nurses, and allied health professionals, and national patient safety standards. Federal public health leadership will also encourage us to look outward, and to recognize that prevention of future bioterrorist attacks and even ordinary epidemics will require international cooperation. As the SARS epidemic illustrates, it is time to not only federalize public health, but to globalize it as well. And universal human rights is the proper foundation for a global public health ethic.

Our new kind of war against bioterrorism should be built on a goal of protecting liberty, not depriving Americans of it. There is a knee jerk tendency in times of war and national emergencies to restrict civil liberties as the most effective way to counteract the threat. But history has taught us that such restrictions are almost always useless and often counterproductive, and we usually wind up with deep regrets for our action. The tendency to return to the days before liberty and informed consent were taken seriously has been evident both in the immediate aftermath of 9/1l. Arbitrary and unlawful responses have not, however, helped make Americans safer or more secure, instead they threaten the very liberties that make our country worth protecting. It is wrong and dangerous for our government to treat its citizens either as enemies to be controlled by force or children to be pacified with platitudes.

America is strong because its people are free, and to be both moral and effective public planning for war and public health emergencies must be based on respecting freedom and trusting our fellow citizens. The United States should lead the world in proclaiming a new, global public health, based on transparency, trust, and science, and most importantly, based on respect for human rights. We don’t need a new Statue of Security: the Statue of Liberty is just fine.

Notes and Questions

  1. The National Plan has defined roles for state and local officials as well:

Police, fire, public health and medical, emergency management, public works, environmental response, and other personnel are often the first to arrive and the last to leave an incident site. In some instances, a Federal agency in the local area may act as a first responder, and the local assets of Federal agencies may be used to advise or assist local officials in accordance with agency authorities and procedures. Mutual aid agreements provide mechanisms to mobilize and employ resources from neighboring jurisdictions to support the incident command.

When State resources and capabilities are overwhelmed, Governors may request Federal assistance under a Presidential disaster or emergency declaration. Summarized below are the responsibilities of the Governor, Local Chief Executive Officer, and Tribal Chief Executive Officer.
As a State’s chief executive, the Governor is responsible for the public safety and welfare of the people of that State or territory. The Governor:

  • Is responsible for coordinating State resources to address the full spectrum of actions to prevent, prepare for, respond to, and recover from incidents in an all-hazards context to include terrorism, natural disasters, accidents, and other contingencies;

  • Under certain emergency conditions, typically has police powers to make, amend, and rescind orders and regulations;

  • Provides leadership and plays a key role in communicating to the public and in helping people, businesses, and organizations cope with the consequences of any type of declared emergency within State jurisdiction;

  • Encourages participation in mutual aid and implements authorities for the State to enter into mutual agreements with other States, tribes, and territories to facilitate resource-sharing;

  • Is the Commander-in-Chief of State military forces...; and

  • Requests Federal assistance when it becomes clear that State or tribal capabilities will be insufficient or have been exceeded or exhausted.

Local Chief Executive Officer
A mayor or city or county manager, as a jurisdiction’s chief executive, is responsible for the public safety and welfare of the people of that jurisdiction. The Local Chief Executive Officer:

  • Is responsible for coordinating local resources to address the full spectrum of actions to prevent, prepare for, respond to, and recover from incidents involving all hazards including terrorism, natural disasters, accidents, and other contingencies;

  • Dependent upon State and local law, has extraordinary powers to suspend local laws and ordinances, such as to establish a curfew, direct evacuations, and, in coordination with the local health authority, to order a quarantine;

  • Provides leadership and plays a key role in communicating to the public, and in helping people, businesses, and organizations cope with the consequences of any type of domestic incident within the jurisdiction;

  • Negotiates and enters into mutual aid agreements with other jurisdictions to facilitate resource-sharing; and

  • Requests State and, if necessary, Federal assistance through the Governor of the State when the jurisdiction’s capabilities have been exceeded or exhausted.

  1. The post-9/11 approach has been an “all-hazards” one. What are the pros and cons to this type of “one-size fits all” planning? Is it really true, as President Bush has said, that planning for a pandemic flu will build our capacity to respond to a chemical attack?

  1. President Eisenhower, when he was commanding general in Europe, is credited with observing before the D-Day invasion: “It’s not the plan, it’s the planning.” Explain. In March, 1942, Winston Churchill observed, “One cannot always provide against the worse assumptions, and to try to do so prevents the best disposition of limited resources.” What did these leaders mean and are these observations from World War II relevant today?

  1. The most notorious example of a complete failure of the national preparedness plan was the response to Hurricane Katrina. This despite the fact that only a year earlier the agencies responsible for responding to a hurricane/flood in New Orleans had participated in a simulation of just such a catastrophe, called “Hurricane Pam.” Under new rules that existed at the time, the Department of Homeland Security was to be the lead agency, but it did not get involved until days after the flooding. On the day the levees broke, Secretary Chertoff traveled to Atlanta to take part in exercises designed to get the country ready for an avian flu pandemic. Almost a year later Chertoff announced the Department’s new plan, which was that:

People should be prepared to sustain themselves for up to

72 hours after a disaster—because first responders might

not be able to reach every single person within the first day.

that means individuals—especially those in the Gulf states—

need to have an emergency plan and an emergency kit with

adequate supplied of food, water, and other essential like a

flashlight, first-aid, and medicine.

In the words of Christopher Cooper and Robert Block, who quote this speech from Chertoff to conclude their study of Katrina, Disaster: Hurricane Katrina and the Failure of Homeland Security (2006), “In the end Chertoff unwittingly defined the most important lesson of all to emerge from Hurricane Katrina: When disaster strikes, we are all on our own.” Id. at 306. On the actual response of local, state and federal officials during the week after Katrina struck see Douglas Brinkley, The Great Deluge: Hurricane Katrina, New Orleans, and the Mississippi Gulf Coast (2006).


358 Lancet 1112 (2001)

The war against terrorism, announced by President Bush and endorsed by western political leaders in the immediate aftermath of the Sept. 11 assault on America, will fail. No matter how much international collaboration is achieved between governments, intelligence services, and police networks, terrorists will never be wholly eradicated from society. Such is the nature of terrorism. A declaration of war, deemed necessary to reassure an anxious public, has raised false expectations of victory. The western response will not only come to be discredited but also may foster the very terrorist activity it is designed to prevent.
Paul Pillar, a former counterterrorism policymaker at the US Central Intelligence Agency, has studied American covert and foreign-policy approaches to terrorist threats. …He argues that war metaphors…drive “a tendency toward absolute solutions and a rejection of accommodation and finesse.” He views traditional counterterrorist policies—diplomatic, legal, military, and economic—as ineffective and counterproductive. The best home we have, he concludes, is not triumph, but containment. Terrorism is a problem managed, never solved.
In response to the present crisis there has been a curious failure to discuss the root causes of terrorism, except for some rather blunt criticism of America itself. Action so far has been confined to three fronts. First, the capabilities of terrorist groups have been targeted. Their organization is being disrupted, their members sought. Second, the intentions of terrorists have been scrutinized. A capability to attack might well be available, but what makes the terrorist decide to act? Encouraging terrorists not to attack involves deterrence and diplomacy. The third front is occupying most political airtime right now—namely, defence. Airport and aircraft security, homeland protection, and military force are all important defensive instruments. None of these efforts gets close to the cause of the problem.
* * *

No single counterterrorist measure will succeed alone. But the existing narrow range of options could be broadened to find ways of engaging and helping rather than punishing populations at risk.

* * *

Afghanistan has been the victim of two decades of savage exploitation by several of those countries now urging a war against terrorism. The hypocrisy of these governments is breathtaking, the consequences predictable and tragic.

In addition to the welcome promises of aid by western powers, there must be three longer-term revisions of policy. First, foreign-policy goals should incorporate health, development, and human rights as key strategic objectives. Too often, foreign policy is reduced to little more than short-term alliances for political or military advantage. These limited goals sow the seeds for later terrorist—and humanitarian—crises.
Second, the application of sanctions must be judged more wisely. In Afghanistan, UN sanctions were aimed at forcing the Taliban government to hand over Osama bin Laden. The health effects have been crushing, while the political objective has failed entirely. Third, western powers must recommit themselves to international agencies, such as the UN, and to international treaties, such as those on criminal justice and the environment. . .
The discipline of public health therefore adds fresh perspectives on foreign policy and counterterrorism measures. Principles of harm reduction are more realistic and practicable than false notions of a war on terrorism. Attacking hunger, disease, poverty, and social exclusion might do more good than air marshals, asylum restrictions, and identity cards. Global security will be achieved only by building stable and strong societies. Health is an undervalued measure of our global security.
Notes and Questions

  1. Horton makes a strong case in his editorial. Is he correct about the importance of public health to combat terrorism? Former UN Commissioner for Human Rights, Mary Robinson, has argued that our world is continually becoming less secure because of the increase in global public health problems. She quotes from the 2004 Human Development Report from the United Nations:

More than 800 million people suffer from undernourish-

ment. Some 100 million children who should be in school

are not, 60 million of them girls. More than a billion

people survive on less than one dollar a day.. And about

900 million people belong to ethnic, religious, racial

or linguistic groups that face discrimination... An

unprecedented number of countries saw development slide backwards in the 1990s. In 46 countries people are poorer today than in 1990. In 25 countries more people go hungry today than a decade ago. Id. at 129.

Robinson goes on to note that in the last six year approximately 25,000 people have died from terrorist attacks. During that same time period, approximately 25,000 people die each day from hunger, malaria, and other preventable diseases. Mary Robinson, Connecting Human Rights, Human Development, and Human Security, in Human Rights and theWar on Terror’ 311 (Richard Ashly Wilson, ed., 2005).

2. Economist Amartya Sen, cited by Robinson, has also directly linked health, especially public health, to freedom and economic development. For example, in his Development as Freedom 4(1999) he writes:

Sometimes the lack of substantive freedoms relates

directly to economic poverty, which robs people of

the freedom to satisfy hunger, or to achieve sufficient

nutrition, or to obtain remedies for treatable

illnesses, or the opportunity to be adequately

clothed and sheltered, or to enjoy clean water or

sanitary facilities. In other cases, the unfreedom

links closely to the lack of public facilities and

social care, such as the absence of epidemiological

programs, or of organized arrangements for health

care or educational facilities.. .
See also on the relationship between health and development, The World Bank, World Development Report 1993: Investing in Health (1993).


(Gruskin et al., eds., 2004) 3-57.

Since the creation of the United Nations over 50 years ago, international responsibility for health and for human rights has been increasingly acknowledged. Yet the actual links between health and human rights had not been recognized even a decade ago. Generally thought to be fundamentally antagonistic, these two worlds had evolved along parallel but distinctly separate tracks until a number of recent events helped to bring them together.
Conceptually one can point to the HIV/AIDS pandemic, to women’s health issues, including violence, and to the blatant violations of human rights which occurred in such places as the Balkans and the Great Lakes region in Africa as having brought attention to the intrinsic connections that exist between health and human rights. Each of these issues helped to illustrate distinct, but linked, pieces of the health and human rights paradigm. While the relationship between health and human rights with respect to these and similar issues may always have made sense intuitively, the development of a ‘health and human rights’ language in the last few years has allowed for the connections between health and human rights to be explicitly named, and therefore for conceptual, analytical, policy, and programmatic work to begin to bridge these disparate disciplines and to move forward. In the last few years human rights have increasingly been at the centre of analysis and action in regard to health and development issues. The level of institutional and state political commitment to health and human rights has, in fact, never been higher. This is true within the work of the United Nations system but, even more importantly, can also be seen in the work of governments and non-governmental organizations at both the national and international level.
The importance of the HIV/AIDS pandemic as a catalyst for beginning to define some of the structural connections between health and human rights cannot be overemphasized. The first time that human rights were explicitly named in a public health strategy was only in the late 1980s, when the call for human rights and for compassion and solidarity with people living with HIV/AIDS was embodied in the first World Health Organization (WHO) global response to AIDS. This approach was motivated by moral outrage but also, even more importantly, by the recognition that protecting the human rights of people living with HIV/AIDS was a necessary element of the worldwide public health response to the emerging epidemics. The implications of this call were far reaching. Framing this public health strategy in human rights terms—although initially focused on the rights of people living with HIV/AIDS rather than on the broad array of human rights influencing people’s vulnerability to the epidemic—allowed it to become anchored in international law, thereby making governments and intergovernmental organizations publicly accountable for their actions towards people living with HIV/AIDS. The groundbreaking contribution of this era lies in the recognition of the applicability of international law to HIV/AIDS issues and in the attention this approach then generated to the links between other health issues and human rights—and therefore to the ultimate responsibility and accountability of the state under international law for issues relating to health and well being.

* * *

While human rights thinking and practice has a long history, the importance of human rights for governmental action and accountability was first widely recognized only after the Second World War. Agreement between nation-states that all people are ‘born free and equal in dignity and rights’ was reached in 1945 when the promotion of human rights was identified as a principal purpose of the newly created United Nations. The United Nations Charter established general obligations that apply to all its member states, including respect for human rights and dignity. Then, in 1948, the Universal Declaration of Human Rights was adopted as a common standard of achievement for all peoples and nations. The basic characteristics of human rights are that they are the rights of individuals, which inhere in individuals because they are human, that they apply to people everywhere in the world, and that they are principally concerned with the relationship between the individual and the state. In practical terms, international human rights law is about defining what governments can do to us, cannot do to us, and should do for us. For example, governments obviously should not do things like torture people, imprison them arbitrarily, or invade their privacy. Governments should ensure that all people in a society have shelter, food, medical care, and basic education.
The Universal Declaration of Human Rights can well be understood to be the cornerstone of the modern human rights movement. The preamble to the Universal Declaration of Human Rights proposes that human rights and dignity are self-evident, the ‘highest aspiration of the common people,’ and the ‘foundation of freedom, justice and peace.’ ‘Social progress and better standards of life’ including the ‘prevention of barbarous acts which have outraged the conscience of mankind,’ and, broadly speaking, individual and collective well being, are understood to depend on the ‘promotion of universal respect for and observance of human rights.’ Although the Universal Declaration of Human Rights is not a legally binding document, nations have endowed it with a tremendous legitimacy through their actions, including invoking it legally and politically at the national and international levels. Portions of the Universal Declaration of Human Rights are cited in the majority of national and international levels. Portions of the Universal Declaration of the Human Rights are cited in the majority of national constitutions drafted since it came into being, and governments often cite the Universal Declaration of Human Rights in their negotiations with other governments, as well as in their accusations against each other of violating human rights. Under the auspices of the United Nations, more than 20 multilateral human rights treaties have been formulated since the adoption of the Universal Declaration of Human Rights. These treaties create legally binding obligations on the nations that have ratified them, thereby giving them the status and power of international law. …

The rights that form the corpus of human rights law are found in the international human rights documents. While it is possible to identify different categories of rights, it is also critical to rights discourse and action to recognize that all rights are interdependent and interrelated, and that individuals rarely suffer neglect or violation of a particular right in isolation. …

* * *
Health and government responsibility for health is codified in these documents in several ways. The right to the highest attainable standard of health appears in one form or another in most of them. More importantly, nearly every article of every document can be understood to have clear implications for health. While the rights to information, education, housing, and safe working conditions, and social security, for example, are particularly relevant to the health and human rights relationship, specific reference must be made to three rights: the right to non-discrimination, the right to the benefits of scientific progress, and the right to health.
* * *
Governments are responsible not only for not directly violating rights, but also for ensuring the conditions which enable individuals to realize their rights as fully as possible. This is understood as an obligation to respect, protect, and fulfill rights, and governments are legally responsible for complying with this range of obligations for every right in every human rights document they have ratified.
Governmental obligations towards ensuring the right to health are summarized below as an illustration of the range of issues relevant to respecting, protecting, and fulfilling human rights.

  1. Respecting the right means that a state cannot violate the right directly. A government violates its responsibility to respect the right to health when it is immediately responsible for providing medical care to certain populations, such as prisoners or the military, and it arbitrarily decides to withhold that care.

  2. Protecting the right means that a state has to prevent violations of rights by non-state actors and offer some sort of redress that people know about and can access if a violation occurs. This means that the state would be responsible for making it illegal to deny insurance or health care to people on the basis of a health condition, and that they would be responsible for ensuring safety nets and some system of redress that people know about and can access if a violation does occur.

  3. Fulfilling the right means that a state has to take all appropriate measures—including but not limited to legislative, administrative, budgetary, and judicial—toward fulfillment of the right, including to promote the right in question. A state could be found to be in violation of the right to health if it failed to allocate sufficient resources incrementally to meet the public health needs of all the communities within its borders.

In all countries, resource and other constraints can make it impossible for a government to fulfill all rights immediately and completely. The human rights machinery recognizes this and acknowledges that, in practical terms, a commitment to the right to health requires more than just passing a law. It will require financial resources, trained personnel, facilities, and, more than anything else, a sustainable infrastructure. Therefore, realization of rights is generally understood to be a matter of progressive realization of making steady progress toward a goal. The principle of ‘progressive realization’ is fundamental to the achievement of human rights. This is critical for resource-poor countries that are responsible for striving towards human rights goals to the maximum extent possible. It is also of relevance to wealthier countries in that they are responsible for respecting, protecting, and fulfilling human rights not only within their own borders, but through their engagement in international assistance and cooperation.

* * *

In spite of the importance attached to human rights, there are situations where it is considered legitimate to restrict rights in order to achieve a broader public good. As described in the International Covenant on Civil and Political Rights, the public good can take precedence to ‘secure due recognition and respect for the rights and freedoms of others; meet the just requirements of morality, public order, and the general welfare; and in times of emergency, when there are threats to the vital interests of the nation’ (ICCPR Article 4). Public health is one such recognized public good. (The specific power of the state to restrict rights in the name of public health can be understood to be derived from Article 12(c) of the ICESCR, which gives governments the right to take the steps they deem necessary for the ‘prevention, treatment, and control of epidemic, endemic, occupational, and other diseases.’) Traditional public health measures have generally focused on curbing the spread of disease by imposing restrictions on the rights of those already infected or thought to be most vulnerable to becoming infected. In fact, coercion, compulsion, and restriction have historically been significant components of public health measures. Although the restrictions on rights that have occurred in the context of public health have generally had as their first concern protection of the public’s health, it is also true that the measures taken have often been excessive. Interference with freedom of movement when instituting quarantine or isolation for a serious communicable disease—for example, Ebola fever, syphilis, typhoid, or untreated tuberculosis—is an example of a restriction on rights that may in certain circumstances be necessary for the public good and therefore could be considered legitimate under international human rights law. Conversely, arbitrary measures taken by public health authorities that fail to consider other valid alternatives may be found to be abusive of both human rights principles and public health ‘best practice.’ In recent times, measures taken around the world in response to HIV/AIDS provides some examples of this type of abuse.

Certain rights are absolute, which means that restrictions may never be placed on them, even if justified as necessary for the public good. These include such rights as the right to be free from torture, slavery, or servitude, the right to a fair trial, and the right to freedom of thought. (See, for example, Article for of the ICCPR, which states that ‘[n]o derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16, 18 may be made under this provision.’) Paradoxically, the right to life, which might at first glance appear to be inalienable, is not absolute; what is forbidden is the arbitrary deprivation of life. Interference with most rights can be legitimately justified as necessary under narrowly defined circumstances in many situations relevant to public health. (See, for example, Article 4 of the ICCPR, which states that ‘[I]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion, or social origin.’)
Limitations on rights, however, are considered a serious issue under international human rights law, regardless of the apparent importance of the public good involved. When a government limits the exercise or enjoyment of a right, this action must be taken as a last resort and will only be considered legitimate if the following criteria are met.

  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 goal; and

  5. The restriction is not imposed arbitrarily, i.e., in an unreasonable or otherwise discriminatory manner.

This approach, often called the Siracusa Principles because they were conceptualized at a meeting in Siracusa, Italy, has long been recognized by those concerned with human rights monitoring and implementation as relevant to analyzing a government’s actions, and it has also recently begun to be considered a useful tool by those responsible within government for health-related policies and programs. This framework, although still rudimentary, may be helpful in identifying public health actions that are abusive, whether intentionally or unintentionally.

At the outset of the twenty-first century, the translation of the right to health into guidelines and other tools useful to national and international monitoring of governmental and intergovernmental obligations is still in its infancy. The ICESCR General Comment on the Right to the Highest Attainable Standard of Health, which was adopted in 2000, may help to provide some useful guidelines. In parallel, as described below, the WHO is developing a new set of tools and recommendations aimed at redirecting the attention given to monitoring global health indicators from disease-specific morbidity and mortality trends towards others that are more reflective of the degree to which health and human rights principles are respected, protected, and fulfilled. How and to what extent these instruments will be put to use and how effective they will be in advancing the health and human rights agenda has yet to be seen, but there are several factors that, even at this early stage, allow for guarded optimism. First, the treaty bodies and international organizations concerned with health are doing this work based on open dialogue and a degree of collaboration that greatly exceeds the level and quality if interagency collaboration traditionally observed within the United Nations machinery. This is exemplified by the sharing of goals and the collective technical co-operation that has prevailed in the current processes of defining obligations and monitoring methods and standards relevant to health and human rights in the process of operationalizing both the international treaties and the recommendations promulgated at the international conferences. Potentially, this work will help not only to monitor what governments are doing, but also to build their capacity to incorporate health and human rights principles into their policies and programs.
In several countries, including Brazil, Thailand, and South Africa, human rights principles relevant to health have recently found their way into national legislation and new constitutions, thereby ensuring citizens the right to seek fulfillment of their right to care, for example, through national juridical means.
* * *
Over 50 years ago, the Constitution of the WHO projected a vision of health as a state of complete physical, mental, and social well being—a definition of health that is more relevant today than ever. It recognized that the enjoyment of the highest attainable standard of health was one of the fundamental rights of every human being and that governments have a responsibility for the health of their peoples, which can be fulfilled only through the provision of adequate health and social measures. The 1978 Alma-Ata Declaration called on nations to endure the availability of the essentials of primary health care, including:

  • Education concerning health problems and the methods for preventing and controlling them

  • Promotion of food supply and proper nutrition

  • An adequate supply of safe water and basic sanitation

  • Maternal and child health care, including family planning

  • Immunization against major infectious diseases

  • Prevention and control of locally endemic diseases

  • Appropriate treatment of common disease and injuries

  • Provision of essential drugs.

In 1998, the World Health Assembly reaffirmed the commitment of nations to strive towards these goals in a World Health Declaration that stressed the ‘will to promote health by addressing the basic determinants and prerequisites for health’ and the urgent priority ‘to pay the greatest attention to those most in need, burdened by ill health, receiving inadequate services for health or affected by poverty.’…

WHO [has attempted] to measure health on the national or international level selectively [using] morbidity, mortality, and disability indicators. This exercise was severely constrained by incomplete national data, differences in measurement methods across countries, and, even more importantly, an inability to relate health outcomes to the performance of health systems. Furthermore, most of these indicators were applied at a national aggregate level with insufficient attempts to disaggregate the data collected to reveal the disparities that exist within nations. It has been understood that measurement indicators and benchmarks that focus on the aggregate (national) level may not reveal important differentials that may be associated with a variety of human rights violations—in particular, discrimination.
In order to improve the knowledge and understanding of health status and trends, and to relate these trends to health system performance, the WHO…developed the following five global indicators [in 2000].

  1. Healthy life expectancy: a composite indicator incorporating mortality, morbidity, and disability in a disability-adjusted life years measure. This indicator will reflect time spent in a state of less than full health.

  2. Health inequalities: the degree of disparity in healthy life expectancy within the population.

  3. Responsiveness of health systems: a composite indicator reflecting the protection of dignity and confidentiality in and by health systems, and people’s autonomy (that is, their individual capacity to effect informed choice in health matters).

  4. Responsiveness inequality: the disparity in responsiveness within health systems, bringing out issues of low efficiency, neglect, and discrimination.

  5. Fairness in financing: measured by the level of health financing contribution of households.

The WHO has stated that it will collect this data through built-in health information systems, demographic and health surveys conducted periodically within countries, and other survey instruments. Data will thus be analyzable by sex, age, race/birth (if warranted under national law), population groups (for example, indigenous populations), educational achievement, and other variables.

The WHO has also expressed its commitment to working with countries toward increasing their capacity to collect this information and also to determine additional data and targets that may be specifically suited to country-specific situations and needs. The WHO and other institutions concerned with health have stated their desire to use thee data to assess trends in the performance of national health systems, inform national and international policies and programs, make comparisons across countries, and monitor global health.

Who Is WHO?

The World Health Organization (WHO) was established in 1948 under the auspices of the United Nations. The United Nations Charter and the WHO Constitution grant WHO the authority to monitor world health. The WHO Constitution allows WHO to address various public health issues by adopting conventions, agreements, and regulations through its supreme decision-making body, the World Health Assembly (Health Assembly). Any member of the United Nations may become a member of WHO by accepting its Constitution. Membership is available to other countries by application, if approval is given by a majority vote of the Health Assembly. There are currently 192 WHO member countries. Each WHO member sends a delegation to meetings of the Health Assembly, typically held in Geneva in May of each year. A 32-member Executive Board meets in January to set the agenda for the upcoming meeting. The Secretariat of WHO is responsible for implementation. The Secretariat has a staff of approximately 3500 at its Geneva headquarters, in six regional offices, and in specific countries. Its head is the Director-General, who is appointed by the Health Assembly on the nomination of the Executive Board.

Articles 19-22 of the WHO Constitution delineate the specific areas of authority of the Health Assembly. Article 21 empowers the Health Assembly to adopt regulations in areas including sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease; nomenclature with respect to diseases; causes of death and public health practices; and standards for diagnostic procedures. After notice of adoption is given, regulations come into force for all member countries, with the caveat that the notice of adoption will specify a period for members to reject or register reservations with the Director-General. The member countries are bound by a set of regulations, and any reservations are typically listed in annexes to the official text.
The control of infectious diseases is one of the areas in which international law has been developed and implemented by WHO. These efforts have culminated in the body of regulations referred to as the International Health Regulations (IHRs). The precursors of today's IHRs were adopted in 1951 as the International Sanitary Regulations . . . and were given their current name in 1969. The IHRs have been modified twice since their enactment, in 1973 and in 1981. The IHRs are intended to maximize security against the global spread of disease while minimizing interference with global movement.
The IHRs require member countries to notify WHO of all cases of certain infectious diseases in humans. Currently [as of 2003], the list of notifiable diseases is limited to cholera, plague, and yellow fever. The IHRs also provide health-related rules for travel and commerce; require health documentation of those traveling from infected to non­-infected places; require other travel documentation, such as maritime declaration of health; and establish guidelines for de-ratting, disinfecting, and adopting other hygiene measures related to travel and commerce. The IHRs not only mandate certain public health activities, they also set limits on the measures member countries may take to protect public health, especially if these impede international traffic For example, with respect to quarantine, the IHRs allow for surveillance or isolation of infected persons only for the duration of the incubation period based on the date of last exposure or arrival.
For many years, there has been debate on the need to revise and strengthen the IHRs to reflect the current concerns about the rapidity with which infectious disease can spread under contemporary social conditions as well as the emergence of new and dormant infections. The SARS outbreak has given a new impetus to the effort needed to update provisions and standards related to reporting and controlling infectious disease on a global level.. .
The Department of Communicable Disease Surveillance and Response (CSR) at WHO houses its global alert and response activities. The mission of CSR is to provide support for global health security and epidemic alert and response. . . . The IHRs provide the basic framework for CSR and are the only set of binding. international legal rules on infectious disease control. . . .
The Global Outbreak Alert and Response Network (GOARN) was established by WHO in 2000 with the assistance of the Canadian government. GOARN is a collaboration of institutions and networks around the world that provides coordination and logistical support in the form of standardized protocols, agreed standards, procedures for alert and verifications process, communications, coordination of response, specialist equipment, medical supplies, emergency evacuation, research, evaluation, and relations with media. It is supported administratively by the office of Alert and Response Operations within CSR. Through GOARN, WHO and partners aim to enhance the coordinated delivery of international assistance in support of local efforts; strengthen local infrastructure and capacity to reduce illness, death, and prevent disease spread. . . .
. . . GOARN functions under guiding principles developed through international consensus with the IHRs as the overarching framework. . . . Although GOARN has played a central role in keeping the global community informed and updated as to changes and progress regarding SARS, its effectiveness has been limited by the voluntary nature of countries reporting beyond the three notifiable diseases under the IHRs. . . .
WHO maintains a number of specific mechanisms that assist member countries in detecting, responding to, and sharing information about disease outbreaks. The Global Public Health Intelligence Network is an electronic system that continuously searches websites, newswires and media sites, public health e-mail services, national government websites, public health institutions, non-governmental organizations, and specialized discussion groups to identify information regarding epidemic threats and rumors. . . . Support for effective response to threats comes from Global Alert and Response Teams, which draw on the expertise of personnel from WHO country offices, WHO regional response teams, alert and response operation center teams, and disease specialists. . . . The Outbreak Verification List is a weekly electronic report of confirmed and unconfirmed reports of outbreaks of international public health importance. . . . The Disease Outbreak News is a web-based system providing public information about officially confirmed outbreaks of international importance.
From Mark A. Rothstein, et al., Quarantine and Isolation: Lessons Learned From SARS 27-32 (2003).
Universal Declaration of Human Rights (1948)

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

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