Chapter eight (bio)terrorism a. Introduction

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Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

International Covenant on Civil and Political Rights (1966)

Article 1:

  1. All peoples have the right of self-determination. . .

Article 4:

  1. In 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, colour, sex, language, religion or social origin.

  2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

  3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. . .

Article 6:

  1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. . .

Article 7:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 8:

  1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

  2. No one shall be held in servitude. . .

Article 11:
No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.

Article 15:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. . .
Article 16:
Everyone shall have the right to recognition everywhere as a person before the law.
Article 18:
Everyone shall have the right to freedom of thought, conscience, and religion. . .

International Covenant on Economic, Social, and Cultural Rights (1966)

Article 2:

  1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. . .

Article 11:

  1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. . .

Article 12:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
Article 13:

  1. The States Parties to the present Covenant recognize the right of everyone to education. . .

Notes and Questions

  1. The United Nations was formed at the end of World War II as a permanent peace-keeping organization. The charter of the United Nations, signed by the 50 original member nations in San Francisco on June 26, 1945, spells out the organization’s goals. The first two goals are “to save succeeding generations from the scourge of war…and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. After the charter was signed, the adoption of an international bill of rights with legal authority proceeded in three steps: a declaration, a treaty-based covenant, and implementation measures.

2. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948, with 48 member states voting in favor of adoption and 8 (Saudi Arabia, South Africa, and the Soviet Union together with 5 other countries whose votes it controlled) abstaining. The declaration was adopted as a “common standard for all people and nations.” As Steiner notes, “No other document has so caught the historical moment, achieved the same moral and rhetorical force, or exerted so much influence on the human rights movement as a whole.” The rights enumerated in the declaration “stem from the cardinal axiom that all human beings are born free and equal, in dignity and rights, and are endowed with reason and conscience. All the rights and freedoms belong to everybody.” These points are spelled out in Articles 1 and 2. Nondiscrimination is the overarching principle. Article 7, for example, is explicit: “All are equal before the law and are entitled without any discrimination to equal protection of the law.” Other articles prohibit slavery, torture, and arbitrary detention and protect freedom of expression, assembly, and religion, the right to own property, and the right to work and receive an education. Of special importance to health care professionals is Article 25, which states, in part, “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services.”

Human rights are primarily rights individuals have in relation to governments. Human rights require governments to refrain from doing certain things, such as torturing persons or limiting freedom of religion, and also require that they take actions to make people’s lives better, such as providing education and nutrition programs. The United Nations adopted the Universal Declaration of Human Rights as a statement of aspirations. The legal obligations of governments were to derive from formal treaties that member nations would individually sign and incorporate into domestic law. On the development of the UDHR see Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2002).
2. Because of the cold war, with its conflicting ideologies, it took almost 20 years to reach an agreement on the texts of the two human-rights treaties. On December 16, 1966, both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights were adopted by the General Assembly and offered for signature and ratification by the member nations. The United States ratified the International Covenant on Civil and Political Rights in 1992, but not surprisingly, given our capitalist economic system with its emphasis on private property, we have yet to act on the International Covenant on Economic, Social, and Cultural Rights. The division of human rights into two separate treaties illustrates the tension between liberal states founded on civil and political rights and socialist and communist welfare states founded on solidarity and the government’s obligation to meet basic economic and social needs.
The rights spelled out in the International Covenant on Civil and Political Rights include equality, the right to liberty and security of person, and freedom of movement, religion, expression, and association. The International Covenant on Economic, Social, and Cultural Rights focuses on well-being, including the right to work, the right to receive fair wages, the right to make a decent living, the right to work under safe and healthy conditions, the right to be free from hunger, the right to education, and “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
Given the horrors of poverty, disease, and civil wars over the past 50 years, it is easy to dismiss the rights enunciated in these documents as empty gestures. Indeed, Amnesty International, in marking the 50th anniversary of the Universal Declaration of Human Rights, labeled the rights it articulates “little more than a paper promise” for most people in the world. It is certainly true that unadulterated celebration is not in order, but as Kunz noted almost 60 years ago in writing about the birth of the declaration, “In the field of human rights as in other actual problems of international law it is necessary to avoid the Scylla of a pessimistic cynicism and the Charybdis of mere wishful thinking and superficial optimism.” Joseph L. Kunz, The United Nations Declaration of Human Rights, 43 Am. J. Int. Law 316, 321 (1949).
3. The right to health has been given more precise definition in a report of the Committee on Economic, Social, and Cultural Rights, the treaty entity formed to help implement the International Covenant on Economic, Social, and Cultural Rights. The document is known as General Comment No. 14 and was issued in 2000. Among its most important provisions are the following:
Health is a fundamental human right indispensable for the exercise of other human rights…
4. ...the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.
8. The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
11. …the right to health…[is] an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health…
12. The right to health in all its forms and at all levels contains the following interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular State party:
(a) Availability. Functioning public health and health-care facilities, goods and services, as well as programs, have to be available…
(b) Accessibility. Health facilities, goods and services have to be accessible to everyone without discrimination…physical accessibility…economic accessibility (affordability)…information accessibility…

(c) Acceptability… All health facilities, goods and services must be respectful of medical ethics and culturally appropriate…

(d) Quality… must also be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.
17. The right to health facilities…[includes] the provision of…equal and timely access to basic preventive, curative, rehabilitative health services and health education; regular screening programs; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, preferably at community level; the provision of essential drugs; and appropriate mental health treatment and care…
33. The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfill.
34. States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women's health status and needs…
35. Obligations to protect include, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties; to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services; to control the marketing of medical equipment and medicines by third parties; and to ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct…
36. The obligation to fulfill requires States parties, inter alia, to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation, and to adopt a national health policy with a detailed plan for realizing the right to health. States must ensure provision of health care, including immunization programs against the major infectious diseases, and ensure equal access for all to the underlying determinants of health, such as nutritiously safe food and potable drinking water, basic sanitation and adequate housing and living conditions. Public health infrastructures should provide for sexual and reproductive health services, including safe motherhood, particularly in rural areas…
43. . . .core obligations [minimum essential level of the right] include at least the following obligations:
(a) To ensure the right of access to health facilities, goods and services on a nondiscriminatory basis, especially for vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing, and sanitation, and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under the WHO Action Program on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and services;
(f) To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.
47. . . .a State party cannot, under any circumstances whatsoever, justify its noncompliance with the core obligations set out in paragraph 43, which are non-derogable.

4. World War II, arguably the first truly global war, led many nations to acknowledge the universality of human rights and the responsibility of governments to promote them. Jonathan Mann perceptively noted that the AIDS epidemic can be viewed as the first global epidemic, because it is taking place at a time when all countries are linked both electronically and by easy transportation. Like World War II, this tragedy requires us to think in new ways and to develop effective methods to prevent and treat disease on a global level. Globalization is a mercantile and ecologic fact; it is also a reality in health care. The challenge facing medicine and health care is to develop a global language and strategy to improve the health of all the world’s citizens.

Clinical medicine is practiced one patient at a time. The language of medical ethics is the language of self-determination and beneficence: doing what is in the best interests of the patient with the patient’s informed consent. This language is powerful, but often has little application in countries where physicians are scarce and medical resources very limited.
Public health deals with populations and prevention of disease—the necessary frame of reference in the global context. In the context of clinical practice, the treatment of human immunodeficiency virus infection with a combination of antiviral medicines makes sense. In the context of worldwide public health, however, such treatment may be available to less than 5 percent of people with AIDS. To control AIDS, it has become necessary to deal directly with discrimination, immigration status, and access to health care. It is clear that population-based prevention is required to address the AIDS epidemic effectively on a global level (as well as, for example, tuberculosis, malaria, and tobacco-related illness). Nonetheless, it has been much harder to articulate a global public health ethic. The field of public health itself has had an extraordinarily difficult time developing its own ethical language. This problem of language has two basic causes: the incredibly large array of factors that influence health at the population level, and the emphasis by contemporary public health professionals on individualism and market forces rather than on the collective responsibility for social welfare. Because of its universality and its emphasis on equality and dignity, the language of human rights is well suited to public health.
On the 50th anniversary of the Universal Declaration of Human Rights, George Annas, following the lead of Jonathan Mann, the father of the “health and human rights” field, suggested that the declaration itself sets forth the ethics of public health, since its goal is to provide the conditions under which people can flourish. This is also the goal of public health. The unification of public health and human-rights efforts throughout the world could be a powerful force to improve the lives of every person. George J. Annas, The Universal Declaration of Human Rights at 50, 339 New Eng. J. Med 1778-1781 (1998).

5. The “Siracusa Principles” describe the conditions under which emergency powers can be used by the state to limit human rights. U.N., Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN4/1984/4, Annex (1984):

A.  General Interpretative Principles Relating to the Justification of Limitations

  1. No limitations or grounds for applying them to rights guaranteed by the Covenant are permitted other than those contained in the terms of the Covenant itself.

  2. The scope of a limitation referred to in the Covenant shall not be interpreted so as to jeopardize the essence of the right concerned.

  3. All limitation clauses shall be interpreted strictly and in favor of the rights at issue.

All limitations shall be interpreted in the light and context of the particular right concerned.
* * *
9.      No limitation on a right recognized by the Covenant shall discriminate contrary to Article 2, paragraph 1.

10.  Whenever a limitation is required in the terms of the Covenant to be "necessary," this term implies that the limitation:

(a)    is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant,

(b)   responds to a pressing public or social need,

(c)    pursues a legitimate aim, and

(d)   is proportionate to that aim.

Any assessment as to the necessity of a limitation shall be made on objective considerations.

11.  In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation.

12.  The burden of justifying a limitation upon a right guaranteed under the Covenant lies with the state.

B. Interpretative Principles Relating to Specific Limitation Clauses…
iv. “public health”
25.  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.

26.  Due regard shall be had to the international health regulations of the World Health Organization.

  1. International Health Regulations, promulgated by the WHO, have always been problematic because the WHO itself is founded on the theory that each state party retains its complete sovereignty. As noted in chapter 3 in the discussion on SARS, this can be a major problem if a country wants to prevent an investigation of an outbreak by WHO because it is worried about things like trade and tourism. After the SARS epidemic, the International Health Regulations were amended in 2005, and take effect June 15, 2007. World Health Org., Application of the International Health Regulations (2005), (last visited Aug. 2006). See, e.g., Lawrence Gostin, International Infectious Disease Law: Revision of the World Health Organization’s International Health Regulations, 291 JAMA 2623 (2004) The new regulations are designed, among other things, to encourage the development of more effective public health surveillance methods and to encourage information sharing, especially for “potential public health emergencies of international concern” defined as “an extraordinary event which is determined, as provided in these regulations, (i) to constitute a public health threat to other States through the international spread of disease, and (ii) to potentially require a coordinated response.” Other provisions include:

Article 5, Surveillance
Each State Party shall develop, strengthen and maintain, as soon as possible but not later than five years from the entry into force of these Regulations for that State Party, the capacity to detect, assess, notify and report events in accordance with these Regulations, as specified in Annex 1 [of the regulations].
Article 6, Notification

    1. Each State Party shall assess events occurring within its territory by using the decision instrument in Annex 2. Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern, within its territory in accordance with the decision instrument, as well as any health measure implemented in response to those events. ..

    2. Following a notification, a State Party shall continue to communicate to WHO timely, accurate and sufficiently detailed public health information available to it on the notified event, where possible including case definitions, laboratory results, source and type of the risk, number of cases and deaths, conditions affecting the spread of the disease and the health measures employed; and report, when necessary, the difficulties faced and support needed in responding to the potential public health emergency of international concern.

  1. There are also treaties that apply directly to bioterrorism and biowarfare, the most important of which is the 1972 Biological and Toxin Weapons Convention. Article I sets forth its basic operative language:

Each State Party to this Convention undertakes never in any

circumstance to develop, produce, stockpile or otherwise acquire

or retain:

      1. Microbial or other biological agents, or toxins whatever

their origin or method of production, of types and in quantities that have no justification for prophylactic,

Protective or other peaceful purposes;

      1. Weapons, equipment or means of delivery designed to use

such agents or toxins for hostile purposes or in armed


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