<<

. 32
( 61 .)



>>

of imposing and sustaining quarantine rise exponentially as the number of
con¬ned persons and locales rises. Yet, many public health of¬cials believe
186 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

that quarantines could be valuable tools in some situations. Signi¬cantly,
smallpox

. . . could theoretically be contained by quarantine, although the time it
would take (from 8 weeks to 6 months) and the high numbers quarantined
(25% to 50% of the daily numbers that show symptoms) makes it unlikely it
could ever be fully enforced. . . . [Q]uarantine, when combined with other
response modalities, could be an effective adjunct to contain a smallpox
epidemic. If public health of¬cials determine the risk for mass vaccination
is justi¬ed, the model shows using a limited, 10-day quarantine of at least
half the population that show symptoms while a mass vaccination program
is prepared could contain the epidemic within 60 days and completely
terminate it after 120 days.52



Considerations of a Quarantine™s Ef¬cacy
There are various key conditions for quarantine™s success. First is early
detection. If the disease has already dispersed widely, then quarantine
would not be effective. There are concerns, therefore, that a slow-acting
pathogen whose symptoms appear well after the initial contamination
will not be readily amenable to quarantine “ by the time that public health
authorities know what is going on, the victims will have circulated world-
wide. In the case of SARS where quarantines were successful in containing
the disease™s spread, it is estimated that if another week had passed, travel
embargoes would not have limited the disease™s spread. Speed is also rel-
evant to the duration of the quarantine. Quarantine cannot effectively
last a long time “ the longer it lasts, the less successful it will be. Because
quarantine without a means to treat those con¬ned can be tantamount
to a death sentence, speedy and secure means to deal with infected peo-
ple are critical. These challenges can be mitigated by having mechanisms
to update protocols as conditions change and as further infections are
observed.
Second, there must be a clear command authority with trained person-
nel who know how to deal with emergency conditions. Quarantine is siege
operation in reverse “ the objective is not to keep the invaders out but to
keep the victims in. Quarantine, by de¬nition, restricts personal freedom
in favor of the larger community™s interest; some persons will be inclined to
disobey. The basic rules of military engagement are useful here. A trained
command serves various purposes: 1) it operates according to prede¬ned
and therefore likely temperate rules of engagement concerning the use
187
PUBLIC HEALTH PREPAREDNESS

of force; 2) it should have considered and prepared for people™s needs so
that there is less incentive to disobey; and 3) strict adherence to quaran-
tine protocols will help to isolate symptomatic individuals quickly so as to
minimize the number of infections.53
Exercise of this authority during the SARS outbreak of 2003 was effective
but raised questions for the future. In Singapore, three thousand people
were ordered to stay in their homes. The “government called at random
times during the day and those quarantined had to present themselves
before a camera (installed by the government) and check their tempera-
ture. Those who violated the quarantine were tagged with an electronic
device that noti¬ed authorities if they left their house.”54 Taiwan quaran-
tined 150,000 people for ten days; 30,000 persons in Ontario were quar-
antined. There was widespread cooperation.55 It is uncertain whether the
tactics that were effective in Singapore would be effective in, for exam-
ple, the United States where government monitoring and constraint are
less tolerated. Further, it is reasonable to ask if a global quarantine system
might work if each nation implements particular restrictions that re¬‚ect
its unique cultural distinctions and concepts of individual liberties.
Third, the modes of mass transportation must be effectively con-
strained especially where access to transportation is easiest. In the 19th
Century model of quarantines, people could exit a city on foot or horse-
back, or via ship or train. Today, airplanes radically change the calculus
of quarantines, taking many people everywhere. No less important, they
bring people into hubs even if that hub is neither the origin nor destina-
tion of the travel. A quarantine that restricts the movement of airplanes
will have monumental ¬nancial and other secondary consequences. For
instance, an outbreak of a contagious disease that provokes a prolonged
quarantine at Heathrow Airport (London) will not only constrain travel in
and out of the United Kingdom; it will substantially impede virtually all air
transport as systems of interconnected routing break down. A successful
quarantine, therefore, involves planning not only by public health and law
enforcement personnel but by transportation of¬cials as well.
Fourth, the public must support quarantine as necessary to contain
the epidemic. Information regarding the status of the epidemic should be
accurate and made available to the public as soon as possible.56 Moreover,
quarantine planners should consider how they will meet the health care
needs of those in quarantine and how the economic hardship of being
con¬ned in quarantine might be alleviated. Public health of¬cials should
be prepared to deal with the general public™s concerns about safety and
appropriateness of care for those quarantined.
188 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

Fifth, there should be mechanisms for redress that can be invoked
after the quarantine is passed. A lengthy and widespread quarantine is
inevitably going to provoke claims of wrongful treatment, discrimina-
tion, or denial of basic human needs. Note should be taken of the fact
that minorities tend to be more concerned about quarantines than do
politically dominant majorities. They might be less willing than others to
trust government authorities and comply with recommendations because
of concern about prior discrimination, experimentation, and inadequate
public health services. Critically, whether those claims have merit under
the circumstances should be decided after the quarantine, not during it.
Judicial intrusion (perhaps by issuing an injunction against the quaran-
tine) could provoke excessive chaos and disrespect for necessary emer-
gency measures. However, if there is no remedy whatsoever for mis-
treated persons, there is likely to be pervasive resistance to authority. The
promise of deferred accountability enables responders to ¬ght the dis-
ease with minimum interference and also soothes self-perceived sufferers
who can take solace that their day in court will come. According to one
expert:

When public health emergencies break out, we need action, not
talk. . . . Because action is essential, courts reviewing emergency measures
are even more than usually deferential to public health agencies. Courts do
not demand perfect information and will usually support public of¬cials
who err within reason on the side of caution. In regard to due process, the
courts generally read it into the statute when it is not there, interpreting
the law consistently with other laws to make it work.57



Quarantines and the World Health Organization™s Authority
In the event of a truly cataclysmic pandemic, the WHO has “the authority
to adopt regulations concerning . . . quarantine requirements and other
procedures designed to prevent the international spread of disease.”58
Quarantine is de¬ned as the restriction of activities and/or separation
from others of suspect persons who are ill or of suspect baggage, contain-
ers, conveyances, or goods in such a manner as to prevent the possible
spread of infection or contamination. In the SARS context, the WHO™s
support for implementation of fair and effective quarantine laws has
received high marks. The WHO recommended speci¬c measures to con-
trol infection, including isolation procedures. The information posted on
the WHO website received up to ten million hits per day at the height of the
189
PUBLIC HEALTH PREPAREDNESS

outbreak, highlighting the importance of its communications capability
for the future.59
The WHO issues International Health Regulations (IHR) “ binding legal
obligations that are a rare example of international law promulgated by
a United Nations body. The newly adopted IHR (2005) de¬nes “a public
health emergency of international concern” as “an extraordinary event
which is determined: (i) to constitute a public health risk to other States
through the international spread of disease and (ii) to potentially require
a coordinated international response.”60 Under Article 6.2 of the new IHR,
States must notify the WHO of all events that may constitute a public health
emergency of international concern within its territory:

Following a noti¬cation, a State Party shall continue to communicate to
WHO timely, accurate, and suf¬ciently detailed public health information
available to it on the noti¬ed event, where possible including case de¬-
nitions, 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 dif¬culties faced and
support needed in responding to the potential public health emergency of
international concern.61

The IHR authorizes the WHO to “implement quarantine or other health
measures of suspect persons” with “respect to persons, baggage, cargo,
containers, conveyances, goods, and postal parcels.” Also speci¬ed are
the “core capacities” required to designate airports, ports, and ground cro-
ssings including being able “to provide for the assessment and, if required,
quarantine of suspect travelers, preferably in facilities away from the
point of entry.”62 Guidelines are provided for how countries should deal
with travelers entering their countries, including requiring the traveler
“to undergo: (a) the least invasive and intrusive medical examinations
that would achieve the public health objective; (b) vaccination or other
prophylaxis; or (c) additional established health measures that prevent or
control the spread of disease, including isolation, quarantine, or placing
the travelers under public health observation”63 (emphasis added). States
must, however, “treat travelers with respect for their dignity, human rights,
and fundamental freedoms and minimize any discomfort or distress asso-
ciated with such measures,” including “providing or arranging for ade-
quate food and water, appropriate accommodation and clothing, protec-
tion for baggage and other possessions, appropriate medical treatment,
means of necessary communication if possible in a language that they
can understand, and other appropriate assistance for travelers who are
190 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

quarantined, isolated, or subject to medical examinations or other proce-
dures for public health purposes.”64
Some experts argue, however, that the new IHR insuf¬ciently protects
human rights. The new IHR only requires States to apply the least intrusive
and invasive measure in connection with medical examinations but not to
vaccination, prophylaxis, isolation, or quarantine. If compulsory measures
are imposed, States need not accord due process protections to affected
persons.65 More broadly, says one expert:

[I]nfectious disease powers curtail individual freedoms, including privacy
(e.g., surveillance), bodily integrity (e.g., compulsory treatment), and lib-
erty (e.g., travel restrictions and quarantine). At the same time, public
health activities can stigmatize, stereotype, or discriminate against indi-
viduals or groups. The draft revised IHR improve human rights protection
but do so in a generalized, oversimpli¬ed fashion, stating that health mea-
sures should be applied “without discrimination” and persons have “rights
in international law.”
The draft revised IHR should elaborate the speci¬c rights that people
possess, set science-based standards and fair procedures for public health
measures, and require states to actively prevent stigma and discrimina-
tion. Notably, the draft revised IHR lack guidance as to the appropriate use
of compulsory powers. The draft states that no invasive medical exami-
nation, vaccination, or prophylaxis can be imposed without prior express
informed consent. This is an oversimpli¬ed statement of international law
and ethics. . . . At the same time, the draft revised IHR are silent regarding
the legal standards and fair processes necessary for isolation, quarantine,
and other compulsory measures.66

Human rights in this context are not merely something to be protected
after there is a biocatastrophe when restricting movement is mandatory;
human rights considerations should be built into quarantine preparedness
measures. This is borne out by a recent study of public attitudes in four
countries to the widespread use of quarantine.67 The study found that
public health authorities need to prepare trusted spokespeople to explain
to the public the steps that need to be taken to halt the spread of the
disease and to stress the need for compliance. Moreover, as being unable
to communicate with family members is a major concern, establishing
communication systems to allow those in quarantine to keep in touch
with relatives will help to ease the public™s anxieties.
In the end, more effective means should be put in place to not only
monitor outbreaks before they have a chance to spread, but also to protect
191
PUBLIC HEALTH PREPAREDNESS

society as a whole from any biological weapons attack period. Otherwise,
it may only be a matter of time before even the best set plans are laid to
waste in the wake of unforeseen health devastation. Quarantines, like so
many public health response measures, raise more questions than they
answer.
8 International Nonproliferation




State bioweapons programs are no longer the exclusive center of biovi-
olence concerns, having been eclipsed by threats from terrorists and
criminals. Yet we dare not ignore State bioweapons threats both because
States have unparalleled capacities for making bioweapons and because
State programs can be the source (wittingly or not) for non-State biovio-
lence.
State threats pose unique challenges for devising a prevention strategy.
There is not much to be gained by trying to deny States access to critical
pathogens and equipment; these items are widely available. Most States
could, on their own, make bioweapons today. Law enforcement interdic-
tion of covert preparations is irrelevant; police will not pursue their own
government™s activities. Also, State use of bioweapons is apt to be of a size
and scale to overwhelm even the best preparations. International non-
proliferation measures must ¬ll the space left thin by complication and
preparedness measures.
From the perspective of preventing bioviolence, international non-
proliferation means steadfastly reinforcing the global prohibition against
bioweapons as a threat to international peace and security. It means that
any State that develops or assists others in developing bioweapons must
be unequivocally denounced as an international criminal, and any State
that puts them to hostile use must know that it will suffer the harshest
consequences permissible under international law. For international non-
proliferation to be effective, States must be able to know whether other
States are foregoing bioweapons, and there must be an objective process
to investigate suspicious activity and to hold violators accountable.
Fortunately, the normative prohibition against bioweapons is pro-
pounded by the Biological Weapons Convention (BWC).1 The BWC™s
great accomplishment has been to ensconce into international law the

192
193
INTERNATIONAL NONPROLIFERATION

centuries-held opprobrium against deliberate in¬‚iction of disease. Its
entry into force thirty-¬ve years ago was a nonproliferation landmark. For
the ¬rst time, a treaty outlawed an entire class of weapons and compelled
destruction of weapons stockpiles. It broadened the Geneva Protocol™s
prohibition against use of bioweapons by outlawing their development,
production, acquisition, or retention.

<<

. 32
( 61 .)



>>