FROM BLACK DEATH TO BIRD FLU: INFECTIOUS DISEASES AND IMMIGRATION RESTRICTIONS IN ASIA
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FROM BLACK DEATH TO BIRD FLU:
INFECTIOUS DISEASES AND IMMIGRATION
RESTRICTIONS IN ASIA
ANDREAS SCHLOENHARDT*
INTRODUCTION AND BACKGROUND
The emergence of diseases such as Severe Acute Respiratory
Syndrome [SARS] and the avian H5N1 influenza A has generated much
concern about quarantine and border control measures. This has reignited
the debate on the nexus between infectious diseases, public health, and
national security. Many countries are reconsidering their policies and laws
regarding immigration restrictions and quarantine. The SARS crisis in
PRC, Taiwan, Vietnam, and Canada in 2003, the current concern about the
impact of bird-flu in Southeast Asia, and the continuing exclusion of
HIV/AIDS infected persons from countries such as Singapore, highlight the
close link between infectious diseases and political considerations that
impact regional security and economic stability in Asia.
The exclusion of persons carrying, or suspected of carrying,
infectious diseases is nothing new. Isolation and quarantine measures have
been documented since the 1300s. At that time, Italy’s growing trade
across the Mediterranean exposed the country to diseases such as the
plague or ‘black death’ brought in by rodents and other animals, cargo, and
humans. In 1374, the cities of Milan and Mantua introduced restrictions on
overland trade to protect the cities from infectious diseases. Milan also
* PhD (Law) (Adelaide), LLB (Hons), Senior Lecturer, The University of Queensland,
TC Beirne School of Law, Brisbane, Australia, a.schloenhardt@law.uq.edu.au. The
author wishes to thank Mr. Angus Graham, The University of Queensland, for his
research assistance. This article is based on a paper presented at the conference
Infectious Diseases and Human Flows in Asia, June 9-10, 2005, Centre for Asian
Studies, Hong Kong University. An earlier version of the conference paper has been
published in the Hong Kong Law Journal.
3334 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
isolated those persons who arrived sick or had any contact with infectious
diseases. The coastal town of Ragusa isolated ships and quarantined
maritime commerce.1
The twentieth and twenty-first centuries have seen new kinds of
diseases and the re-emergence of old diseases that spread with ever
growing speed around the world. HIV/AIDS, for instance, was first
discovered in the United States and now, twenty-five years later, is among
the main causes of premature death in southern Africa, parts of Asia, and
increasingly in the South Pacific. SARS first emerged in southern China
near Guangzhou, and Hong Kong. Within days the disease was
communicated throughout East and Southeast Asia and to Canada.
Currently, the avian H5N1 influenza A, also referred to as the bird flu,
causes fears of a new pandemic in many parts of Asia and around the
world.
Experts attribute the emergence2 of new infectious diseases and re-
emergence of old diseases to microbial adaptation and change,
complacency by governments and the public, environmental degradation,
human demographics and related behavioral changes, and globalization.3
Scott Burris, for example, remarks that “[i]nternational trade rules
contribute directly to two major sets of factors commonly identified in
analyses of disease emergence and persistence: 1) economic dislocation,
poor sanitation, and poverty in ‘source’ countries, and 2) the movement of
pathogens through trade routes.”4 Global commerce and travel enable
infectious diseases to move around the world within days. This leads to
sometimes catastrophic consequences — often caused by hysteria,
paranoia, and overreaction, rather than by the disease itself.
Most countries try to contain diseases by quarantine measures and by
excluding those from entry who are regarded as risks to public health. The
decision to detain and exclude persons who arrive from areas of disease-
outbreak has a direct impact on bilateral and multilateral relations, on the
economies of sending and destination countries, and on national and
regional security.
The key focus of this article is on infectious diseases and immigration
1. David P. Fidler, Microbialpolitik: Infectious Diseases and International Relations, 14
AM. U. INT’L L. REV. 1, 8 (1998) [hereinafter Fidler, Microbialpolitik].
2. “Emerging infectious diseases” have been defined as “diseases of infectious origin
whose incidence in humans has increased within the past two decades or threatens to
increase in the near future.” Scott Burris, Law as a Structural Factor in the Spread of
Communicable Disease, 36 HOUS. L. REV. 1755, 1759-60 (1999).
3. David P. Fidler et al., Emerging and Reemerging Infectious Diseases: Challenges for
International, National, and State Law, 31 INT’L LAW. 773, 775 (1997) [hereinafter
Fidler et al., Emerging and Reemerging Infectious Diseases].
4. Burris, supra note 2, at 1772-73.2006] FROM BLACK DEATH TO BIRD FLU 35
restrictions in Asia. This article examines immigration restrictions that bar
the entry of persons carrying infectious diseases in Brunei Darussalam,
Cambodia, PRC and its Special Administrative Regions [SAR], Hong
Kong and Macau, Japan, Republic of Korea [South Korea], Lao PDR,
Malaysia, Papua New Guinea, Philippines, Singapore, Taiwan,5 Thailand,
and Vietnam. The article analyzes the existing normative framework in
these jurisdictions in reference to selected diseases, including the plague,
cholera, tuberculosis, Marburg disease, Ebola hemorrhagic fever,
HIV/AIDS, SARS, and Avian influenza. Further, the article examines the
legitimacy of these immigration restrictions under the World Health
Organization’s [WHO] International Health Regulations and other WHO
standards. The article concludes by proposing a range of practical
measures to prevent, contain, and suppress the cross-border spread of
infectious diseases more effectively.
I. IMMIGRATION LAWS
The purpose of immigration law is to regulate and control the cross-
border movements of people. It is particularly concerned with the
immigration of persons seeking entry — temporarily or permanently — for
a variety of purposes, including, for example, work, study, private visits,
medical treatment, asylum, investment, family reunion, et cetera. All
nations have a legitimate right and a duty to monitor and control the arrival
and departure of persons across their borders and, in particular, prevent the
arrival of unwanted foreigners.
All countries in the world, including the Asian jurisdictions surveyed
here, have legislated a range of exclusion clauses and other prohibitions to
render those people who are ‘unwanted’ for a variety of reasons, ineligible
for immigration.6 For example, the immigration of individual persons or
certain groups of immigrants may be regarded as undesirable because their
presence in the territory may potentially cause danger, threats, or expense
to the economy, public health, morale, or security of the host jurisdiction.
Economic considerations, for instance, lead many countries to bar those
5. In this study ‘PRC’ refers to the Chinese mainland - the People’s Republic of China.
‘Taiwan’ refers to the Republic of China or Chinese Taipei. Since the revolution in
1949 both Chinas claim to be the “official” China. Internationally, the PRC is widely
recognized as the official China. The government of the PRC considers Taiwan a so-
called “renegade province.”
6. See generally Andreas Schloenhardt, Immigration and Refugee Law in the Asia
Pacific Region, 32 H.K. L.J. 519, 526-30 (2002) [hereinafter Schloenhardt,
Immigration and Refugee Law]; Jend Vedsted-Hansen, Non-Admission Policies and
the Right to Protection: Refugees’ Choice versus States’ Exclusion?, in REFUGEE
RIGHTS AND REALITIES: EVOLVING INTERNATIONAL CONCEPTS AND REGIMES 269–70
(Frances Nicholson & Patrick Tworney eds., 1999).36 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
persons from arrival who have insufficient means to support themselves
and their dependants during their stay.7 Some countries in Asia perceive
the presence of certain individuals or groups of persons as dangerous or
otherwise undesirable for reasons of public morality, and consequently
prohibit the entry of prostitutes8 as well as those who have lived on or
received funds derived from prostitution.9 Also, many jurisdictions
prohibit the entry of persons whose presence in the territory could
potentially pose a threat to political stability and national security. This
includes, for example, persons who have been convicted of a crime10 or
who are involved in criminal organizations11 or terrorism.12
The immigration laws and practices in Asia and elsewhere also make
it possible to exclude those persons from immigration who are perceived to
pose a danger for reasons of public health. Most countries prohibit the
entry of persons who suffer, or who are suspected of suffering, from
contagious, “loathsome,” infectious, or otherwise dangerous diseases.13
Also, mentally ill individuals, “idiots,” and other “insane persons” are not
allowed to enter most territories in the region.14 Some countries also
require medical examinations prior to admission into the territory and
7. E.g., Immigration Act § 8(2)(a) (1958) (Brunei); Immigration Act § 8(3)(a)
(1959/1963) (Malay.); Migration Act § 8(1)(a) (1978) (Papua N.G.); Immigration Act
§ 29(a)(5) (1940) (Phil.); Immigration Act § 8(3)(c) (1959) (Sing.); Immigration Law
art. 17(9) (Taiwan); Immigration Act §§ 12(2), (9) (1979) (Thail.).
8. E.g., Immigration Act § 8(2)(e) (1956) (Brunei); Immigration Act § 8(3)(e)
(1959/1963) (Malay.); Immigration Act § 29(a)(4) (1940) (Phil.); Immigration Act §
8(3)(e) (1959) (Sing.); Immigration Act § 12(8) (1979) (Thail.).
9. E.g., Immigration Act, §§ 8(2)(e), (f) (1956) (Brunei); Immigration Act § 8(3)(f)
(1959/1963) (Malay.); Immigration Act § 29(a)(4) (1940) (Phil.); Immigration Act §
8(3)(f) (1959) (Sing.); Immigration Act § 12(8) (1979) (Thail.).
10. E.g., Immigration Act § 8(2)(d) (1956) (Brunei); Immigration Act § 8(3)(d)
(1959/1963) (Malay.); Immigration Act § 29(a)(3) (1940) (Phil.); Immigration Act §
8(3)(d) (1959) (Sing.); Immigration Law art. 17(7) (Taiwan); Immigration Act §
12(6) (1979) (Thail.).
11. E.g., Immigration Act art. 17(a) (1992) (Indon.).
12. E.g., Immigration Act §§ 8(2)(i), (j) (1956) (Brunei); Immigration Act art 17(b)
(1992) (Indon.); Immigration Act §§ 8(3)(i), (j) (1959/1963) (Malay.); Immigration
Act § 29(8)(a) (1940) (Phil.); Immigration Act §§ 8(3)(i), (j) (1959) (Sing.).
13. Immigration Act § 8(2)(c)(ii) (1956) (Brunei); Immigration Act § 8(3)(b) (1959/1963)
(Malay.); Migration Act § 8(1)(b)(ii) (1978) (Papua N.G.); Immigration Act §
29(a)(2) (1940) (Phil.); Immigration Act § 8(3)(b) (1959) (Sing.); Immigration Law
art. 17(8) (Taiwan); Immigration Act § 12(4) (1979) (Thail.); Ordinance on Entry,
Exit, Residence and Travel of Foreigners art. 6(3) (1992)(Vietnam).
14. Immigration Act § 8(2)(b) (1956) (Brunei); Immigration Act § 8(3)(b) (1959/1963)
(Malay.); Migration Act § 8(7)(b)(i) (1978) (Papua N.G.); Immigration Act § 29(a)(1)
(1940) (Phil.);Immigration Act § 8(3)(b) (1959) (Sing.); Immigration Law art. 17(8)
(Taiwan); Immigration Act § 12(4) (1979)(Thail.).2006] FROM BLACK DEATH TO BIRD FLU 37
prohibit the entry of persons who have failed to undergo the examination
and those who have not been vaccinated against certain diseases.15
The various immigration laws authorizing exclusion based on health
grounds generally do not specify what infectious diseases warrant
exclusion or, in other words, what type of diseases are to be kept out. The
immigration laws of Singapore specify that persons infected with
HIV/AIDS are prohibited from entry.16 Likewise, persons infected with
“leprosy, AIDS, venereal diseases, contagious tuberculosis”17 are
prohibited from entry into China. The Philippine Immigration Act of 1940
makes specific mention of epilepsy.18 Elsewhere, the immigration laws
simply state that persons suffering from “infectious,”19 “contagious,”20
“epidemic,”21 or “loathsome”22 diseases are prohibited from entry into that
jurisdiction, but these laws do not further specify which particular diseases
are actually excluded. For persons who do not fall into any of these
categories but are otherwise viewed as persona non grata, the laws in all
jurisdictions in Asia provide special discretionary powers for the Minister
or Director of Immigration to prohibit their entry.23
In general (minor variations in individual nations aside), countries bar
prohibited immigrants from entering the territory and deny visas unless the
respective Minister or Director of Immigration makes individual
15. Immigration Act § 8(2)(c)(i) (1956) (Brunei); Immigration Act § 8(3)(c) (1959/1963)
(Malay.); Migration Act § 8(1)(c) (1978) (Papua N.G.); Immigration Act § 8(3)(c)
(1959) (Sing.); Immigration Act § 12(5) (1979) (Thail.).
16. Immigration Act § 8(3)(ba) (1959) (Sing.): “The following persons are members of
the prohibited classes: [. . .] any person suffering from Acquired Immune Deficiency
Syndrome or infected with the Human Immunodeficiency Virus.”
17. Rules Governing the Implementation of the Law of the PRC on the Entry and Exit of
Aliens, art.7(4) (1986). “Aliens coming under the following categories shall not be
allowed to enter China: [. . .] (4) An Alien suffering from mental disorder, leprosy,
AIDS, venereal diseases, contagious diseases and other infectious diseases”.
18. Immigration Act § 29(a)(2) (1940) (Phil.).
19. Immigration Act § 8(2)(b)(ii) (1956) (Brunei); Rules Governing the Implementation
of the Law of the PRC on the Entry and Exit of Aliens art. 7(4) (1986); Immigration
Act § 8(3)(b) (1959/1963) (Malay.); Immigration Act § 8(3)(b) (1959) (Sing.).
20. Immigration Act § 8(2)(b)(ii) (1956) (Brunei); Immigration Act § 8(3)(b) (1959/1963)
(Malay.); Immigration Act § 29(a)(2) (1940) (Phil.) (quoting “dangerous and
contagious”). Immigration Act § 8(3)(b) (1959) (Sing.); Immigration Law art. 17(8)
(Taiwan).
21. Immigration Control Act art. 11(1)(1) (1992) (S. Korea); Ordinance on Entry, Exit,
Residence and Travel of Foreigners art. 6(3) (1992) (Vietnam).
22. Immigration Act § 29(a)(2) (1940) (Phil.).
23. Immigration Act § 8(2)(k) (1956) (Brunei); Immigration Act § 8(3)(k) (1959/1963)
(Malay.); Immigration Act § 8(3)(k) (1959) (Sing.); Immigration Act § 12(10) (1979)
(Thailand).38 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
exceptions. The immigration laws provide that in order to detect infectious
diseases, health officials can board an aircraft, vessel,24 or train.25 The
master of a vessel or aircraft is usually required to declare the presence on
board of any infectious disease.26 Moreover, for the purposes of detecting a
disease,27 health officials have powers to conduct medical examinations of
any passenger on board, and to quarantine any infected person until such
time as the disease is no longer contagious.28
If persons classified as prohibited immigrants are found in the
territory, or if their status changes after arrival so that they become
prohibited immigrants, the immigration laws provide that they be detained
and removed as soon as practicable. In some places, it is a criminal offense
to be a ‘prohibited immigrant.’29
II. INFECTIOUS DISEASES
A. General Observations
As mentioned before, the immigration laws generally do not identify
which specific diseases the country excludes. Instead, they usually use
broad terms such as “infectious,” “contagious,” “epidemic,” or “loathsome”
diseases. In China, the Philippines, and Singapore the immigration laws
make specific mention of HIV/AIDS, leprosy, venereal diseases,
contagious tuberculosis, and epilepsy. Elsewhere, this specification is made
in supplementary regulations,30 relevant health and quarantine laws,31 or, in
some cases, specification is left to the discretion of Ministers or other
senior health officials.32
24. See, e.g., Quarantine and Prevention of Disease Ordinance § 22(1) (H.K.).
25. E.g., id. at §§ 29(1), (2).
26. E.g., id. at § 28(2).
27. E.g., id. at § 31.
28. E.g., id. at § 27.
29. The entry of prohibited immigrants in an offence under the Immigration Act § 20
(1958) (Brunei); see also, e.g., Law on Control of the Entry and Exit of Aliens art. 29
(1986) (P.R.C.); Immigration Act § 8(5) (1959/1963) (Malay.); Migration Act
§ 16(1)(a) (1978) (Papua N.G.); Immigration Act § 8(5) (1959) (Sing.).
30. E.g., Immigration Act § 17(8) (1979) (Thail.) (referring to the Ministerial
Regulations)..
31. E.g., Quarantine and Prevention of Disease Act (1934) (Brunei); Law on the
Prevention and Treatment of Communicable Diseases (P.R.C.); Communicable
Disease Prevention Act (2000) (S. Korea); Prevention and Control of Infectious
Diseases Act (1988) (Malay.); Quarantine Regulations (1956) (Papua N.G.);
Infectious Diseases Act (Sing.); Communicable Disease Control Act (1944) (Taiwan);
Communicable Diseases Act (2523) (1980) (Thail.).
32. Immigration Act (1979) (Thail.) (referring to Ministerial Regulations).2006] FROM BLACK DEATH TO BIRD FLU 39
The following part of this paper examines more closely the diseases
that are commonly excluded under the immigration laws in Asian
countries. The infectious diseases examined here include plague, cholera,
tuberculosis, Marburg disease, Ebola hemorrhagic fever, HIV/AIDS,
SARS, and avian influenza.
B. Plague
The plague — or Black Death, as it is frequently referred to — is an
infection caused by an organism usually carried by rodents. It is
transmitted to humans by flea bite or ingestion of the feces of fleas. It can
also be transmitted from human to human when a plague patient develops
pneumonia and spreads infected droplets by coughing; plague epidemics
usually start this way.33
The most recent major outbreak of plague was reported in parts of
India in 1994. However, India, only confirmed the outbreak and reported it
to the World Health Organization [WHO] long after the media first
reported occurrences of the disease. Thousands of people fled from the
outbreak area, thus causing a further spread of the disease to other parts of
India. Other countries responded to the outbreak by closing airports to
planes arriving from India and banning trade and travel to and from India.
The panic in some places became so great, that Indian workers in other
countries were released and returned to India, even though some of them
had not been to India for many years. It has been estimated that the
‘embargoes’ imposed on India in the aftermath of the 1994 outbreak of
pneumonic plague caused losses of 1.7 billion USD to the Indian
economy.34
It has been argued that many of the border control and quarantine
measures adopted by countries in response to the plague epidemic in India
in 1994 were unwarranted and, at times, in violation of international
regulations. It is thus unsurprising that, in view of the possibility of huge
economic losses, India was initially reluctant to report the outbreak of the
disease. Conversely, it must be recognized that plague can spread very
easily and has very high fatality rates, which explains why many countries
prohibit the entry of persons suspected of carrying the disease.
33. See B.K. MANDEL ET AL., INFECTIOUS DISEASES 110 (6th ed. 2004).
34. Fidler et al., Emerging and Reemerging Infectious Diseases, supra note 3, at 778;
David P. Fidler, Mission Impossible? International Law and Infectious Diseases, 10
TEMP. INT’L & COMP. L.J. 493, 498 (1996) [hereinafter Fidler, Mission Impossible?];
Allyn L. Taylor, Controlling the Global Spread of Diseases: Toward a Reinforced
Role for the International Health Regulations, 33 HOUS. L. REV. 1327, 1348 (1997).40 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
C. Cholera
Cholera is an acute bacterial diarrheal disease that may result in life
threatening dehydration. If the disease is left untreated, death may occur in
a few hours and the case fatality rate may exceed fifty percent. Cholera can
be transmitted by contaminated water, ingestion of contaminated food or
water, or by seafood obtained from contaminated water. Airborne
transmission or transmission by casual contact is not possible; however,
severely ill patients are usually isolated.35
Endemic cholera occurs in parts of Africa, Asia, and Central Europe.
A pandemic cholera that began in Asia in 1961 spread to Africa in 1970
and to South America twenty years later. It was first identified in Peru in
1991, where during that year 300,000 people were infected with the
disease, and of those, 3,000 died. Peru immediately notified the WHO of
the outbreak, as required by the International Health Regulations. After the
notification, many countries restricted trade and travel to and from Peru,
resulting in estimated losses to the Peruvian economy of 700 million
USD.36 Most recently, cholera outbreaks have been reported in Senegal,
where fifty-four people died in a single week in April 2005.37
Approximately 300,000 cases of cholera are reported to the WHO
annually. In 2003, WHO received reports from forty-five different
countries of 111,575 cases of cholera and 1,894 deaths. Ninety-six percent
of these cases were reported in Africa. In Asia, only the People’s Republic
of China and Hong Kong (reporting 229 cases), Japan (reporting sixteen
cases), and Singapore (reporting one case) notified the WHO in 2003.38 In
industrialized countries, cholera usually occurs in imported cases from
returned travelers.
The cholera vaccine is available, and there are also many other ways
to avoid the disease. Cholera can best be avoided by not consuming food
and liquids that may potentially be contaminated with cholera bacteria.
People should also avoid contact with the vomitus and feces of an infected
person, especially during the illness and for several days after symptoms of
the illness cease. Thus, common sense and proper personal care appear to
be better ways to contain cholera than prohibiting entry and imposing
quarantine measures on immigrants, which continues to be the practice in
35. See MANDEL ET AL., supra note 33, at 187-88.
36. Fidler et al., Emerging and Reemerging Infectious Diseases, supra note 3, at 778;
Fidler, Mission Impossible?, supra note 34.
37. World Health Organization [WHO], Cholera, Senegal – Update, 80 WEEKLY
EPIDEMOLOGICAL RECORD 134 (Apr. 15, 2005).
38. WHO, Cholera, 2003, 70 WEEKLY EPIDEMIOLOGICAL RECORD 281, 281-83 (July 30,
2004).2006] FROM BLACK DEATH TO BIRD FLU 41
some countries.39
D. Tuberculosis
Tuberculosis [hereinafter TB] is a highly contagious, airborne bacillus
that thrives on oxygen. The bacteria survives within the human’s immune
cells, which otherwise destroy bacteria and viruses. However, some of the
TB pathology is not yet fully understood. TB infection spreads through
direct person to person contact through talking, coughing, spitting, or
inhalation by the uninfected person.
Given the ease with which TB spreads, it has been estimated that one-
third of the world population is infected. However, only eight to ten
million people develop the active disease and, according to WHO data, two
million die from it each year. Most of these cases occur in sub-Saharan
Africa and Southeast Asia, with smaller yet significant rates reported in
Eastern Europe. Disease rates are especially high if TB coincides with
HIV/AIDS infection.40 In most industrialized nations, TB has largely been
eradicated, though there has been some resurgence of new drug-resistant
strains. Generally, immigration of infected persons appears to be the main
cause of TB in industrialized nations, contributing disproportionately to a
resurgence of the disease. A report published in the United States in 2000
estimated that:
In 1998, immigrants accounted for nearly 42 percent of the
18,361 tuberculosis cases [US] nationwide, although they
represented just over 10 percent of the total population.
Health officials said that TB rates in specific groups of
immigrants reflect the occurrence of tuberculosis in their home
countries. The disease is particularly endemic in Latin America,
Asia and Africa.
....
Studies of TB in immigrants have indicated that most patients
are infected in their home countries, but develop the active form
of the disease once they are in the United States.
....
Nationally, the immigrant groups with the highest number of TB
cases are Mexicans, Filipinos, Vietnamese, Indians, Chinese,
39. MANDEL ET AL., supra note 33, at 127.
40. See generally MANDEL ET AL., supra note 33, at 187-88.42 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
Haitians and Koreans.41
TB is perhaps the most common infectious disease, which is why
people who are infected with TB are excluded from immigration. The
disease can spread by casual contact, it often has fatal consequences and is
more common in some parts of the world than in others. Therefore, it is
not surprising that many, if not most, countries prohibit the entry of persons
suspected of carrying the disease.
E. Marburg Hemorrahagic Fever
Marburg hemorrhagic fever [hereinafter Marburg Disease] is a rare
yet highly fatal virus. The disease is characterized by high fever,
significant bleeding, rapid deterioration, and death of the patients resulting
from blood loss or from shock. The mortality rate for Marburg disease is
estimated to be between eighty-three and ninety percent.
Transmission of Marburg disease requires very close contact with an
infected person - usually with that person’s blood or other body fluids.
Airborne transmission and transmission by casual contact do not appear to
be possible. Some outbreaks have been linked to animals, especially
monkeys, but more recent research suggests that animals die of the disease
too rapidly to be viable reservoirs of the virus. Its resemblance to other
diseases makes detection of the Marburg disease particularly difficult.42
Marburg disease first came to the attention of health authorities
following outbreaks in the late 1960s in Southern Africa, from where it was
imported into Europe. On August 24, 2005, the disease again made
headlines when Angola reported 374 cases of Marburg disease, of which
329 cases were fatal; this was the largest and deadliest known outbreak of
the disease.43 On November 7, 2005, over three months after the last
confirmed laboratory case, the Angolan Ministry of Health officially
declared the disease outbreak over.44
National health authorities and the WHO consider the risk of the
spread of Marburg disease across international borders to be very low.
41. Susan Sachs, More screening of immigrants for tuberculosis sought, 28 MIGRATION
WORLD MAGAZINE 34 (Dec 31, 2000).
42. MANDEL ET AL., supra note 33, at 229; WHO, Marburg Hemorrhagic Fever – Fact
Sheet, 80 WEEKLY EPIDEMIOLOGICAL RECORD 135, 135-38 (Apr. 15, 2005); WHO,
Marburg Hemorrhagic Fever in Angola – Update, 80 WEEKLY EPIDEMIOLOGICAL
RECORD 134 (Apr. 15, 2005).
43. See WHO, Epidemic and Pandemic Alert and Response [EPR], Marburg
Hemorrhagic Fever in Angola – Update 25 (Aug 24, 2005), at www.who.int
/csr/don/2005_08_24/en/print.html; WHO, Marburg – Fact Sheet, supra note 42.
44. WHO, EPR, Marburg Hemorrhagic Fever in Angola – Update 26 (Nov 7, 2005), at
www.who.int/csr/don/2005_11_07a/en/print.html.2006] FROM BLACK DEATH TO BIRD FLU 43
Transmission requires close contact with the patient, and evidence suggests
transmission can only occur after the onset of symptoms.45 Although some
countries have legislation to deny entry to persons suspected of carrying the
disease, given the rapid deterioration of patients, it is highly unlikely that
infected persons can spread the disease by travel.
F. Ebola Hemorrhagic Fever
Ebola hemorrhagic fever [hereinafter Ebola] is a viral disease
transmitted to humans from infected animals and animal materials, though
many aspects of this disease, including the ways of transmission, are not
fully known. Within a week of infection with Ebola, rashes, often
containing blood, appear all over the human body, causing the patient to
bleed from the mouth and the rectum. Ebola infection will usually result in
the death of the infected person, though, as with Marburg disease, patients
usually die from shock rather than from blood loss.46
Outbreaks of Ebola fever have largely been restricted to some parts of
Africa. A 1995 epidemic of the disease in the Democratic Republic of
Congo, then Zaïre, made worldwide headlines when it caused 245 deaths.47
The WHO estimates that since the discovery of the Ebola virus in 1976,
“approximately 1,850 [cases] with more than 1,200 deaths have been
documented” worldwide.48
There is to date no known treatment or cure for the Ebola disease.
Patients are usually isolated to reduce the risk of transmission. Secondary
cases of Ebola infection may occur in persons who are exposed to bodily
fluids of an infected person, such as nurses and health-care workers in
facilities with poor hygiene and limited or no infection control. One
expert, Alfred DeMaria, remarks that “[i]t is possible that a health care
worker from the developed world working in such a facility could have
unrecognized contact with Ebola and return to their home country before
the onset of symptoms.”49 Indeed, some countries have introduced
measures to exclude persons from entry if they are suspected of carrying
the Ebola disease. However, these measures are of little, if any, practical
use for a disease that develops so rapidly and for which the exact mode of
45. WHO, Marburg — Fact Sheet, supra note 42, at 136.
46. See MANDEL ET AL., supra note 33, at 228-30; WHO, Ebola Hemorrhagic Fever —
Fact Sheet Revised in May 2004, 79 WEEKLY EPIDEMIOLOGICAL REPORT 435, 435-39
(Dec. 3, 2005).
47. Fidler et al., Emerging and Reemerging Infectious Diseases, supra note 3, at 778.
48. WHO, Ebola Hemorrhagic Fever, supra note 46, at 438.
49. Alfred DeMaria, Jr., The Globalization of Infectious Diseases: Questions Posed by
the Behavioral, Social, Economic and Environmental Context of Emerging Infections,
11 NEW ENG. J. INT’L & COMP. L. 37, 47 (2004).44 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
transmission is not yet known.50
G. HIV/AIDS
Perhaps the most controversial addition to the list of infectious
diseases that may provide grounds for immigration exclusion is HIV/AIDS.
The debate has been particularly heated in the United States where, in
1987,51 AIDS and later HIV infection were added to the list of “dangerous,
contagious diseases” that bar foreigners from entry into the US.52
The disease was first discovered in 1981 in sexually active gay men in
New York and Los Angeles. “The Centers for Disease Control [CDC] in
the United States named the disorder Acquired Immune Deficiency
Syndrome [AIDS] in recognition of its transmission to previously healthy
individuals.”53
The Joint United Nations HIV/AIDS Programme [UNAIDS] and the
WHO estimate that at the end of 2005, approximately 40.3 million people
were living with HIV globally; approximately 1.3 million in Southeast Asia
(not including India). Four million, nine hundred thousand new HIV
infections and 3.1 million AIDS deaths were reported in 2005, mostly
(ninety-five percent) in developing nations.54
In essence, AIDS is caused by an infection called the Human
Immunodeficiency Virus [HIV]. HIV attacks a subpopulation of the white
blood cells, known as the ‘helper cells,’ that are responsible for initiating
50. See WHO, Ebola Hemorrhagic Fever, supra note 46, at 438.
51. Supplemental Appropriations Act 1987, Pub. L. No. 100-71,§ 518, 101 Stat. 391, 475
(known as the Helms Act).
52. Immigration and Nationality Act § 1182(a)(6). The term “dangerous contagious
disease” under the Immigration and Nationality Act 1952 included a list of eight
diseases: chancroid, gonorrhea, granuloma inguinale, HIV, infectious leprosy,
lymphogranuloma venereum, infectious stage syphilis, and active tuberculosis. The
Immigration Act of 1990 substituted this provision (now termed “communicable
disease of public health significance). Immigration Act 1990, Pub. L. No. 101-649,
§ 601, 104 Stat. 4978, 5067. See also Christine N. Cimini, The United States Policy
on HIV Infected Aliens: Is Exclusion an Effective Solution?, 7 CONN. J. INT’L L. 367,
368-76 (1992); Juan P. Osuna, The Exclusion from the United States of Aliens
Infected with the AIDS Virus: Recent Developments and Prospects for the Future, 16
HOUS. J. INT’L L. 1, 5-39 (1993).
53. Leonard J. Nelson III, Current Development, International Travel Restrictions and
the AIDS Epidemic, 81 AM. J. INT’L L. 230, 233 (1997).
54. Joint United Nations Programme on HIV/AIDS (UNAIDS) & WHO, Aids Epidemic
Update: December 2005, 1, U.N. Doc. UNAIDS/05.19E (Dec., 2005); cf.
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, 4 (2004);
Jonathan Todres & Pamela L Marcogliese, International Health Law, 39 INT’L LAW.
503, 504 (2005).2006] FROM BLACK DEATH TO BIRD FLU 45
the human body’s response to typical viral attacks. Once HIV enters the
cells, it starts replicating itself. The host cells are eventually irrevocably
damaged or destroyed, leaving the body unprotected against a wide range
of disease-causing microbes. As HIV breaks down the immune system, it
opens the door to other opportunistic infections that the body’s white blood
cells would ordinarily repel. Because of the damage HIV causes the
immune system, even everyday infections can result in serious illness or
death. AIDS is the last stage of the HIV infection during which the
immune system has been substantially weakened and is unable to fight off
even the most basic infections. About half the people who are HIV
positive will develop AIDS within approximately ten years, but the time
between infection with HIV and the onset of AIDS can vary greatly. The
severity of the HIV-related illness or illnesses will differ from person to
person, according to many factors, including the overall health of the
individual.55
HIV can only be transmitted through contact with, or transmission of,
blood, breast milk, semen, or vaginal fluids. It can also be transmitted
prenatally. Before HIV can be transmitted, there must be exposure to the
living virus, entry of the virus into the host, and successful replication
within the host. Transmission through casual contact or airborne
transmission is not possible; HIV/AIDS also can not be spread through
saliva, sweat, or tears, and cannot be carried by insects. “Fears that other,
thus far undiscovered methods of transmitting HIV may exist are not
supported by scientific evidence.”56
The transmission between humans is only possible through very
close, intimate contact or by sharing intravenous instruments such as
needles. To combat the spread of HIV/AIDS some countries introduced
quarantines and restrictions on international travel in the 1980s and 1990s.
Entry prohibitions for persons infected with HIV/AIDS remain intact in
Brunei, Singapore, and the United States. Similarly, in China, “any
foreigner suffering from AIDS” is prohibited from entering the country.57
Vietnam also restricts the entry of HIV-positive immigrants to prevent
55. Peter A. Barta, Lambskin Borders: An Argument for the Abolition of the United
States’ Exclusion of HIV-Positive Immigrants, 12 GEO. IMMIGR. L.J. 323, 324-25
(1998); Cimini, supra note 52, at 377; MANDEL ET AL., supra note 33, at 169-71;
Milne, supra note 54, at 4; cf. Fernando Chang-Muy, HIV/AIDS and International
Travel: International Organizations, Regional Governments, and the United States
Respond, 23 N.Y.U. J. INT’L L. & POL. 1047, 1047 (1991).
56. Barta, supra note 55, at 343; see also MANDEL ET AL., supra note 33, at 169-70.
57. Sarah N. Qureshi, Note & Comment, Global Ostracism of HIV-Positive Aliens:
International Restrictions Barring HIV-Positive Aliens, 19 MD. J. INT’L L. & TRADE
81, 93 (1995) (citing 43 INT’L DIG. HEALTH LEGIS. 33 (1992).46 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
“economic and social losses.”58 In the Philippines, immigrants seeking to
stay for six months or more must be AIDS-free.59 In contrast, Thailand
initially prohibited the entry of foreigners infected with AIDS in 1985,60
but repealed this prohibition in 1992.61
A study of national AIDS policies published in 1996 found that: “The
reasons why nations set up immigration policies that bar entry of HIV-
infected persons are diverse — a desire to do something to contain
infection, the presence of strong nationalistic tendencies, limited concern
regarding individual rights, and monetary worries about straining national
health care resources.”62
There has been strong criticism of immigration restrictions against
HIV/AIDS infected persons. Many have argued that these policies have no
public health purpose and do not assist in containing the disease.
Researchers have repeatedly recommended that HIV/AIDS be removed
from lists that warrant exclusion from immigration.63 The WHO also
rejects policies of screening and excluding immigrants with HIV/AIDS:
1. No screening program of international travelers can prevent
the introduction and spread of HIV infection;
2. HIV screening programs for international travelers would, at
best, and at great cost, retard only briefly the dissemination of
HIV both globally and with respect to any particular country;
3. HIV screening of international travelers would divert scarce
resources away from educational programs, protection of the
blood supply, and other measures intended to prevent parental
and prenatal transmission. This diversion would be difficult to
justify because of the epidemiological, legal, economic, political,
cultural, and ethical factors militating against adoption of such a
policy.64
The immigration restrictions for HIV/AIDS create a false perception
58. Id. at 94 (citing 44 INT’L DIG. HEALTH LEGIS. 230).
59. Id. at 95.
60. MINISTERIAL REGULATIONS NO 11 (1986) ISSUED UNDER THE IMMIGRATION ACT,
(1979) (Thail.), reprinted in LEGISLATIVE RESPONSES TO AIDS, at 192 (WHO ed.
1989).
61. Qureshi, supra note 57, at 87.
62. Peri H. Alkas & Wayne X. Shandera, HIV and AIDS in Africa: African Policies in
Response to AIDS in Relation to Various National Legal Traditions, 17 J. LEGAL
MED. 527, 541 (1996).
63. Barta, supra note 55, at 344; see Cimini, supra note 52, at 375.
64. Barta, supra note 55, at 349 (quoting WHO, Global Strategy for the Prevention and
Control of AIDS at 20, U.N. Doc. A/43/341, U.N. Sales No. E. 88.80 (1988)).2006] FROM BLACK DEATH TO BIRD FLU 47
regarding the threat that the disease poses and, in return, generates a false
sense of security if infected persons are kept out. The exclusion is seen by
many as discriminatory, especially against homosexuals and foreigners,
and as an infringement of human rights.65
H. Severe Acute Respiratory Syndrome [SARS]
SARS, or “Severe Acute Respiratory Syndrome,” was the first new
significant infectious disease to emerge in the 21st century. SARS was a
formerly unknown coronavirus and was given its first case definition by the
WHO on March 15, 2003.66 According to the clinical case definition by
the WHO, the virus begins with a fever of over thirty-eight degrees Celsius
(one hundred degrees Fahrenheit) and is followed by the development of
one or more symptoms of lower respiratory tract illness, such as cough and
breathing difficulties, after a period of two to seven days. 67 Some cases
have also reported the presence of diarrhea.68
The incubation period of the disease is said to be between two and ten
days.69 An infected person can, theoretically, be a carrier of the virus for
up to ten days while not presenting any symptoms, but reports suggest that
the virus is not contagious until the patient becomes symptomatic.70 In
contrast to other respiratory illnesses, SARS appears to be most infectious
after ten days of its initial transmission.71 At that stage, for reasons yet
unknown, patients either subsequently recover; or in contrast, undergo
rapid decline “to severe respiratory illness, often [in ten to twenty percent
of all cases72] requiring ventilatory support.”73
65. Osuna, supra note 52, at 14; Nelson, supra note 53, at 231.
66. WHO, WORLD HEALTH REPORT 2003: SHAPING THE FUTURE, 73-75 (2003).
67. WHO, EPR, Alert,Verification and Public Health Management of SARS in the Post-
Outbreak Period (Aug. 14, 2003), at www.who.int/csr/sars/postoutbreak/en[here
inafter SARS Alert Verification]; SARS EXPERT COMM., H.K. DEPT. OF HEALTH,
SARS IN HONG KONG: FROM EXPERIENCE TO ACTION 5 (2003); US Department of
Health and Human Services, Center for Disease Control and Prevention [CDC],
Severe Acute Respiratory Syndrome (SARS) (May 3, 2005), at www.cdc.gov/ncidod
/sars/factsheet.htm [hereinafter CDC].
68. Approximately ten to twenty percent report the presence of diarrhea. CDC, supra
note 67.
69. WHO, EPR, Preliminary Clinical Description of Severe Acute Respiratory Syndrome,
at http://www.who.int/csr/sars/clinical/en (last visited Mar. 9, 2006) [hereinafter
SARS Clinical Description]; SARS Alert Verification, supra note 67.
70. SARS Alert Verification, supra note 67.
71. WHO, Exec. Bd., Report by the Secretariat: Severe Acute Respiratory Syndrome
(SARS), ¶ 7, WHO Doc EB113/33 Rev. 1 (Jan. 23, 2004) [hereinafter Secretariat
Report].
72. SARS Clinical Description, supra note 69.
73. Secretariat Report, supra note 71.48 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
The virus originally occurred in the masked palm civet cat in southern
China in 2002 and later jumped to persons.74 The transmission of SARS is
believed to occur when one person comes in close contact with an infected
person, resulting in “exposure to infected respiratory droplets expelled
during coughing or sneezing, or following contact with body fluids during
certain medical interventions.”75 The virus is also believed to survive in
human excrement, which has been attributed to the community outbreak in
Hong Kong through faulty drainage and sewage systems. This method of
transmission infected some three hundred residents living within the same
housing estate in late March 2003.76
The mortality rate for SARS varies significantly depending on the age
of the infected person and on whether the infected person suffers from any
other “underlying chronic disease[s].”77 Based on data received from
affected countries, the global mortality rate of the disease is approximately
eleven percent,78 varying from seventeen and one tenth percent in Hong
Kong to seven percent in other parts of China.79
The first human SARS infection occurred in November 2002, in
Guangdong Province of southern China, though the Chinese Government
initially tried to suppress information about the outbreak.80 SARS was then
‘imported’ into Hong Kong on February 21, 2003 by an infected physician
who had treated atypical pneumonia patients in Guangdong Province.81
The doctor stayed in room 911 at the Metropole Hotel in Kowloon where at
least sixteen other guests and visitors were infected on the same floor.82 As
74. DeMaria, supra note 49, at 48.
75. WHO, WORLD HEALTH REPORT, supra note 66, at 74; cf. MANDEL ET AL., supra note
33, at 63.
76. WHO, WORLD HEALTH REPORT, supra note 66, at 74.
77. Secretariat Report, supra note 71.
78. WHO, WORLD HEALTH REPORT, supra note 66, at 74; Milne, supra note 54, at 6.
This figure is subject to further variation depending on the age of the patient.
Although the mortality rate for a twenty-four year-old patient is only one percent, it is
fifty percent for patients sixty-five years of age and above. Abu S.M. Abdullah et al.,
Lessons From the Severe Acute Respiratory Syndrome Outbreak in Hong Kong -
Perspectives, 9 EMERGING INFECTIOUS DISEASES 1042, 1043 (2003).
79. Sarah J. Marshall, WHO, Expert Committee Finds Little Fault in Hong Kong’s
Response to SARS, 81 WHO BULLETIN 848 (2003).
80. David P. Fidler, SARS: Political Pathology of the First Post-Westphalian Pathogen,
31 J.L. MED. & ETHICS 485, 491 (2003) [hereinafter Fidler, SARS]; Jacques de Lisle,
Atypical Pneumonia and Ambivalent Law and Politics: SARS and the Response to
SARS in China, 77 TEMP. L. R.EV. 193, 206 (2004).
81. WHO, EPR, Update 27 - One Month into the Global SARS Outbreak: Status of the
Outbreak and Lessons for the Immediate Future (April 11, 2003), at http://www.who
.int/csr/sarsarchive/2003_04_11/en/print.html [hereinafter SARS Update 27].
82. WHO, WORLD HEALTH REPORT, supra note 66, at 74-75.2006] FROM BLACK DEATH TO BIRD FLU 49
the hotel guests returned home, the virus was carried along international air
travel routes. In the following days, outbreaks were reported in Hong
Kong, Vietnam, Singapore, and Canada.83
“On [March 12, 2003], the Hong Kong Government officially notified
WHO of an outbreak of respiratory illness among health care workers.”84
That same day, the WHO issued a ‘global alert’ on SARS.85 The WHO
issued travel advisories to countries with “recent local transmission”86
when it was found that infected persons and close contacts of infected
persons were continuing to travel, thereby transmitting the disease to other
passengers and bringing it to their travel destinations. On April 2, 2003,
the WHO issued a travel advisory suggesting that travelers defer “all but
essential travel”87 to Hong Kong. On June 23, 2003, twenty days (twice the
disease’s maximum incubation period) after the date of the last reported
case - Hong Kong was removed from the WHO’s list of “areas with recent
local transmission.88 The global outbreak continued until the WHO
removed the last travel advisory imposed upon Beijing on June 24, 2003.
The removal of Taiwan from the WHO’s list of areas with recent local
transmission followed on July 5, 2003,89 which deemed all “human chain[s]
of transmission” to be effectively broken.90
According to the WHO, by August 7, 2003, a total of 8,422 SARS
cases had been reported in thirty countries, resulting in 916 deaths. Of the
probable cases, 5,327 (or sixty-three percent) were in China, 1,755 (twenty-
one percent) in the Hong Kong SAR and 665 (eight percent) were in
83. SARS Update 27, supra note 81.
84. WHO, Regional Office for the Western Pacific, Severe Acute Respiratory Syndrome
(SARS), 3, WHO Doc. WPR/RC54/8 (Aug. 4, 2003).
85. SARS EXPERT COMM., supra note 67, at 4.
86. WHO, Western Pacific Region, SARS- Hong Kong Removed From List of Areas With
Local Transmission (June 23, 2003), at http://www.wpro.who.int/sars/docs/pressre
leases/pr_23062003_.asp.
87. WHO, EPR, Update 17 – Travel Advice – Hong Kong Special Administrative Region
of China, and Guangdong Province, China (April 2, 2003), at http://www.who.int/csr
/sars/archive/2003_04_02/en.
88. WHO, EPR, Update 86 – Hong Kong Removed From List of Areas with Local
Transmission (June 23, 2003), at http://www.who.int/csr/don/2003_06_23/en. Since
the Hong Kong SAR was declared SARS-free by the WHO on 2 June 2003, there has
been no new reported case of SARS in Hong Kong. H.K. Steps Up Measures After
China’s SARS Case Confirmed, ASIAN ECON. NEWS (Jan. 12, 2004), at http://www
.findarticles.com/p/articles/mi_m0WDP/is_2004_Jan_12/ai_112093272.
89. WHO, WORLD HEALTH REPORT, supra note 66, at 78.
90. SARS Alert Verification, supra note 67.WHO, Alert, Verification and Public Health
Management of SARS in the Post-Outbreak Period, (April 14, 2003), available at
http://www.who.int/csr/sars/postoutbreak/en.50 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
Taiwan.91 It is estimated that globally the 2003 SARS crisis led to
economic losses of 10 billion USD.92
No effective vaccine or cure for SARS has yet been found.93 The
treatment administered to patients during the 2003 outbreak included a
variety of antibiotics to presumptively treat known bacterial agents of
atypical pneumonia. Steroids, ribavirin, and other antimicrobials were also
administered, often in combination.94 However, it is yet unknown which
treatment is the most effective.95 Equally, it remains unclear whether
restrictions on the movement and quarantine of people and the exclusion of
SARS-patients from immigration were necessary.96
I. Avian Influenza (Bird Flu)
A disease that is currently making headlines in Asia and elsewhere in
the world is the H5N1 avian influenza A,97 or bird flu, which is an
infectious disease of birds. While epidemics of the disease have occurred
for many decades, recent outbreaks in Southeast Asia and the possible
transmission of the disease to humans have caused new concern.
For a long time it was thought that the avian influenza virus would
not infect animals other than birds or pigs. The first infections of humans
were documented following an epidemic in Hong Kong in 1997. The virus
caused severe respiratory disease in eighteen people, six of whom died. As
of March 10, 2006, there have been a reported 176 cases of human
infections, including ninety-seven deaths (resulting in a fifty-five percent
mortality rate), since the first case of human H5N1 infection on December
91. WHO, WORLD HEALTH REPORT, supra note 66, at 75; Lawrence O. Gostin et al.,
Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome:
Implications for the Control of Severe Infectious Disease Threats, 290 J. AM. MED.
ASSOC. 3229, 3229 (2003). For more statistics, see W. K. Lam et al., Overview on
SARS in Asia and the World, 8 RESPIRIOLOGY 2, 2 (2004); SARS EXPERT COMM.,
supra note 67.
92. Milne, supra note 54, at 6.
93. See WHO, WORLD HEALTH REPORT, supra note 66, at 78.
94. SARS Clinical Description, supra note 69. Treatment during the 2003 outbreak also
included the administration of “corticosteroids, antiviral therapy, [and] Chinese
medicine:” SARS EXPERT COMM., supra note 67, at 14.
95. SARS Clinical Description, supra note 69.
96. MANDEL ET AL., supra note 33, at 63. See also Elim Chan & Andreas Schloenhardt,
SARS Outbreak in Hong Kong: A Review of Legislative and Border Control
Measures, SING. J. L. STUD. 484-510 (2004).
97. “Influenza viruses are classified by type: [Types] A and B are [the] major epidemic
strains, with A being associated with pandemic influenza as well. [. . .] Influenza A
viruses are further typed by their surface proteins, hemagglutinin (H) and
neurominidase (N), as H#N# types.” DeMaria, supra note 49, at 50, n. 53.2006] FROM BLACK DEATH TO BIRD FLU 51
26, 2003. Most of these cases (ninety-three cases resulting in forty-two
deaths) occurred in Vietnam.98
Only limited research is available on the transmission of the disease
from animal to human and from human to human. To date, there is no
evidence that bird flu can spread from human to human. The weight of
authority suggests that the greatest danger for humans to become infected is
through close contact with domestic birds or pigs (that are susceptible to
both bird and human influenza).99 Consequently, the most common
measure to halt further spread of epidemics and reduce opportunities for
human exposure to the virus has been the mass destruction of poultry
populations in infected areas. Within three days of the first human cases,
Hong Kong destroyed an estimated 1.5 million birds. Since 2003,
approximately 200 million birds and poultry have died. Despite these
drastic measures the disease continues to haunt parts of Southeast Asia,
especially Vietnam and, most recently, Cambodia and Indonesia.100
To date, no reliable vaccine exists for the avian influenza.101
Vaccinations against seasonal influenza may lower the risk of infection as
they reduce “opportunities for the virus to reassort during co-infection of a
human with both avian and currently circulating human influenza viruses.”
However, the WHO warned that “[v]accination against seasonal influenza
will not protect people against infection with the H5N1 virus.”102
Any calls for the exclusion of infected persons from immigration
carry little argument until the virus acquires the capacity to pass from
human to human. As recently as November 2005, the WHO issued the
following recommendations relating to travelers: “WHO does not
recommend any restrictions on travel to any areas affected by H5N1 avian
influenza [. . .], including countries which have reported associated cases of
human infection. WHO does not recommend screening of travelers coming
98. WHO, Cumulative Number of Confirmed Human Cases of Avian Influenza A/(H5N1)
Reported to WHO (Mar. 10, 2006), http://www.who.int/csr/disease/avian_influenza
/country/cases_table_2006_03_10/en/index.html (last visited Mar. 19, 2006).
99. DeMaria, supra note 49, at 51-52.
100. Id. at 52; Lawrence O. Gostin, Pandemic Influenza: Public Health Preparedness for
the Next Global Health Emergency, 32 J.L. MED. & ETHICS 565, 566 (2004)
[hereinafter Gostin, Pandemic Influenza]; see WHO, Avian influenza, Cambodia -
Update, 80 WEEKLY EPIDEMIOLOGICAL RECORD 133, 133-134 (Nov. 15, 2005). For a
complete list of H5N1-related events see WHO, H5N1 Avian Influenza: Timeline
(Oct. 28, 2005).
101. WHO, Vaccine Research and Development: Current Status ( 2005), at www.who.int
/csr/disease/avian_influenza/vaccineresearch2005_11_3/en/print.html.
102. WHO, WHO Guidance on Public Health Measures in Countries Experiencing Their
First Outbreaks of H5N1 Avian Influenza (Oct 2005), at www.who.int/csr/disease/
avian_influenza/guidelines/firstoutbreak/en/print.html.52 NEW ENG. J. INT’L & COMP. LAW [Vol. 12:2
from H5N1 affected areas.”103
III. INTERNATIONAL HEALTH REGULATIONS
The International Health Regulations are the main international
instrument to prevent and control the spread of infectious diseases across
borders. The origins of international cooperation to contain the spread of
infectious diseases go back to the mid- nineteenth century when epidemic
diseases such as cholera, plague, and yellow fever spread across Europe, as
a result of improved transportation across the continent.104
The objectives of the early international efforts to prevent and
suppress the spread of infectious diseases were as much an attempt to
contain the diseases as they were to ensure minimum interference with
cross-border trade and travel. The conflict between quarantine measures on
the one hand and economic and commercial demands on the other is a
continuing essential feature of international law and diplomacy in this field.
David Fidler observes that since the inception of international efforts, there
has been recognition “that attempts to control diseases by the imposition of
rigid border measures are largely illusory.”105
The first conventional initiatives on international cooperation and
infectious diseases were made in the 1890s and early 1900s. The
International Sanitary Conference adopted the International Sanitary
Convention in 1892. A specific Convention addressing the plague
followed in 1897. In 1903, a new International Sanitary Convention
replaced the earlier agreements.106
The creation of the United Nations established the WHO as the UN’s
chief health agency.107 The World Health Assembly [WHA] is the WHO’s
key policy making body; its decisions are binding upon all WHO Member
States, unless an individual Member submits a reservation that is accepted
by the WHA.108
On July 25, 1951, at the Fourth World Health Assembly, the WHA
103. WHO, WHO Recommendations Relating to Travellers Coming from and Going to
Countries Experiencing Outbreaks of Highly Pathogenic H5N1 Avian Influenza (Nov.
2005), at www.who.int/csr/disease/avian_influenza/travel2005_11_3/en/print.html.
104. Cf. Lawrence O. Gostin, World Health Law: Toward a New Conception of Global
Health Governance for the 21st Century, 5 YALE J. HEALTH POL’Y L. & ETHICS 413,
413 (2005) [hereinafter Gostin, World Health Law]; Nelson, supra note 53, at 233-34.
105. Fidler, Microbialpolitik, supra note 1, at 16; Taylor, supra note 34, at 1340.
106. Cf. Gostin, World Health Law, supra note 104, at 414. For a complete list of
international agreements see DAVID P. FIDLER, INTERNATIONAL LAW AND INFECTIOUS
DISEASES 22-26 (1999) [hereinafter FIDLER, INTERNATIONAL LAW].
107. Frank Gutteridge, The World Health Organization: Its Scope and Achievements, 37
TEMP. L. Q. 1, 2 (1963).
108. CONSTITUTION OF THE WHO art. 3. Cf. Nelson, supra note 53, at 234.You can also read
