The Revised International Health Regulations and Restraint of National Health Measures
von Tigerstrom, Barbara, Health Law Journal
Occurring against the backdrop of severe acute respiratory syndrome (SARS), avian influenza and fears of a global influenza pandemic, the revision of the International Health Regulations (IHR or Regulations) is one of the most significant developments in international health law in recent years. The previous Regulations, outdated and notoriously ineffective, have been comprehensively revised, providing a new legal framework for global infectious disease surveillance and control. In May 2005, the World Health Assembly adopted the revised IHR, which will be binding on WHO member states when they come into force in 2007. With major changes to the Regulations' scope, states' obligations, and the powers and duties of the World Health Organization (WHO), the revised IHR represent a landmark in the international legal framework relating to health. It has even been suggested that the revision can be seen as part of a transition to a new era in global health governance. (1)
One important change involves the way in which the revised IHR purport to govern or limit public health measures taken by individual states. The previous Regulations prescribed specific measures to be taken in response to diseases within their scope, and prohibited additional or "excessive" measures. The aim of this restriction was to achieve the main purpose of the IHR, "to ensure the maximum security against the international spread of diseases with a minimum interference with world traffic." (2) This objective remains important, but the means of achieving it have been dramatically changed. This difference and its implications are the main focus of this article. After reviewing the IHR and their revision, it will discuss the old and new approaches to restricting states' public health measures and balancing maximum security against minimum interference. The revisions to the relevant articles themselves will be examined, but these must also be considered in light of changes to other parts of the Regulations and the evolving global context, and in terms of the change they represent for the role of the IHR and their relationship with the rest of international law.
II. The International Health Regulations and their revision
A. The International Health Regulations (1969)
The IHR have long been, and remain, the only binding international legal instrument on global disease surveillance and control. They were adopted under the authority of the WHO Constitution, Article 21 of which provides that the World Health Assembly, the highest decision-making body of the WHO, may adopt regulations on matters including "sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease". (3) According to Article 22 of the same instrument, such regulations are binding on WHO member states unless they advise the Director-General of their rejection or reservation. The IHR (1969) had earlier precursors: a series of International Sanitary Conventions adopted in the second half of the 19th century, later consolidated into the 1951 International Sanitary Regulations, renamed the International Health Regulations in 1969. (4) These Regulations, with only a few minor changes, have remained in place despite widespread and profound changes in the global environment relating to infectious diseases.
Like the earlier conventions upon which they were based, the IHR (1969) deal only with a limited set of specific diseases: plague, cholera and yellow fever. (5) In respect of those diseases, they require states to notify the WHO of any case of the disease within their territory (Article 3). The WHO must also be provided with further information during an epidemic (Article 6) and must be notified of measures taken by each state with respect to arrivals from infected areas and vaccination requirements (Article 8). This information is then to be shared by the WHO with the health administrations of all other member states (Article 11). …