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China: The Exercise of Public Health Powers in the Case of MERS: Human Rights Implications

Written by:  Layla Li (Li Yi)

Globalization has increased the potential for international spread of infectious diseases and has resulted in the need for adopting a multilateral approach to public health. Worldwide patterns and determinants of health and disease, and specifically infectious diseases, are changing dramatically due to globalization’s erosion of traditional geographical, temporal and cognitive boundaries.[1] Take the example of one of the hottest topics in Chinese internet and the whole society these days, which is the spread of the deadly Middle East Respiratory Syndrome (MERS) from South Korea to Guangdong province. The carelessness among medical staff in S. Korea, as well as the bungling of initial response by the South Korean government has caused widespread indignation.

In view of this, this article is to analyze the behavior of Korean government in the purpose of illustrating the reason why their act is in violation of International Covenant on Civil and Political Rights, and how can we strike a balance between the public health powers and human rights.

I. Brief introduction

MERS is a respiratory illness caused by a coronavirus, similar to SARS. The first human case emerged in Saudi Arabia in 2012. It has a fatality rate of about 40 percent.[2] There is no effective antiviral treatment for MERS and medical care just focuses on alleviating the symptoms so far.

On May 26, a 44-year-old South Korean man left for China despite recommendations from a doctor of dropping his travel plan due to his fever symptom. The man flew from South Korea to Hong Kong on May 26 via an Asiana Airlines flight and entered the southern Huizhou city3 through Shenzhen by bus, and has driven hundreds of others into being isolated for observation during the incubation period of two weeks. Shortly after the isolation of the 44-year-old man, he was confirmed positive for the MERS.

It can be concluded from the above that lack of understanding among the individuals and medical staffs over the fatal contagion risk triggered the spread of MERS fears from South Korea to China. If not for the carelessness of the individuals and medical staff, the MERS fears would not have obsessed the Chinese people.

II. The obligations concerning the Public Health Power in MERS case

What shall Korean government do in face of MERS?

Since each and every human right requires three significant duty of government: the duty to respect, to protect, and to fulfill, the right of life and health are no exceptions. Accordingly, from my point of view, in preventing the spreading of infectious diseases like MERS, government shall: (1) Respect the right of the infector and ordinary people. For instance, no measures of 3 Huizhou city is a part of Guangdong province. discrimination against infectors can be adopted.

(2) Protect the violation of these rights against third persons. For example, Chinese government ought to take measures when the Korean infectee slipped into China, in order to prevent further spreading of MERS.

(3) Adopt positive measures to ensure the safety of citizens. For example, adopt compulsory isolation towards patients when necessary.

Has the S. Korean government fulfilled their duties?

The answer to this question is clear. Through the preceding reports, I took three of the most typical nonfeasance as examples. It’s worth noting that the responsibilities cannot be attributed entirely to the S. Korean authorities, due to the character of MERS that it does not appear to spread easily among people in public settings. However, the S. Korean government has apparently in violation of Article 12 of ICCPR, “The state Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, especially the second paragraph, “The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:…(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.” The details are as follows:

Failed to set a reliable standard of watchful lists

According to the report, the Korea Centers for Disease Control and Prevention (CDC) didn’t conduct any test on the 68-year-old first patient who has recently been to Bahrain, even after his doctor’s report on the possibility of infection. It’s because Bahrain is not a country where MERS was identified before. As a matter of fact, the U.S. CDC has already classified Bahrain as MERS-dangerous-country long ago. Setting the standards of watchful countries and patient can be regarded as a fundamental measurement in prevention of infectious disease, yet the S. Korean health authorities failed to fulfill that obligation.

Failed to ban the MERS suspects from leaving country

Though it might raise controversy, public health has been recognized as a solid reason to restrict or derogate freedom of movement, according to almost all the human rights conventions. It can be easily interpreted the patient’s personality and preceding behaviors as indicating that he would continue to act in such a way as to risk disease spread.[3]

  1. Korean government wasn’t aware of a this significant point that a disease arising anywhere on the planet poses a threat to public health in every nation. The distinction between national and international health policy has become more than irrelevant.[4]

Failed to raise public attention on MERS prevention

Two South Korean women, who were on the same flight to Hong Kong and sat close to the MERS patient, at first refused to be isolated for test and treatment, reflecting how South Koreans lack understanding of the fatality of the viral disease. In the early stage of the analogous viruses, it’s of the government’s positive duty to ensure all sorts of preventive measures be fully understood by the public, which is exactly the opposite in the MERS case.

III. What kind of human rights might be derogated in the exercise of public health power?

Governments commonly assert that there exists a right to derogate from human rights norms to safeguard the public interest during crises. Such assertions reflect an attempt to reconcile individual and aggregate interests.[5] In the prevention of spreading infectious diseases, the above “crises” can be claimed, if the situations have reached certain standards. One referential standard was set out in Public Health Act 1997 in the Australian Capital Territory, for determination of whether conditions are liable to become a public health risk, including regard to the number of persons affected or potentially affected by the conditions; the degree or potential degree of public health risk, damage or offensiveness to community health standards; any reasonable precautions that the person creating the risk might have or have not taken to avoid or minimize the adverse consequences; and any reasonable precautions that the person at risk might take or might not have taken to avoid or minimize the effect of the risk.[6] To some extent, if the situation is not so serious, “restriction” might be a better description on the limitations of the relevant human rights.

The general criteria

Considering that S. Korean is a contracting party of the International Covenant on Civil and Political Rights, thus the criteria ought to be sought in the provisions. In accordance with Article 22 paragraph 2 of ICCPR, the restriction on the right to freedom of association may be placed within two criteria: prescribed by law and necessary in a democratic society. In implementing these two criteria, the government should take into account the general considerations of the limitation clause interpretation and the principle of proportionality and non-discrimination.

Obviously, the exercise of public health power in relevant to series of human rights, including the freedom of speech, freedom of association, and in some cases, right of fair trial, etc. The most controversial human rights derogated in the prevention of MERS are hereinafter.

The freedom of movement

According to Article 12 of ICCPR, everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country, including his own. Especially, the above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or moral, which justify the restriction of freedom of movement in the MERS prevention. Undoubtedly, these restrictions has to be proportional.

On June 1, South Korea planned to impose a ban on suspected infectees with MERS from leaving the country, which is exactly a perfect example. Unfortunately, damage has been caused due to the initial carelessness.

Personal Liberty?

In response of the netizen’s opinion that the patient shall be compulsorily detained, I would like to briefly analyze the feasibility of restraining personal liberty in this situation.

A Chamber of the European Court of Human Rights had the opportunity to interpret the extent of the power of States, under Article 5(1)1 of the European Convention on Human Rights to detain a person infected with the HIV virus in Enhorn v Sweden.[7]

The Court made clear that any such detention must be in compliance with both the principle of proportionality and the requirement that there be an ‘absence of arbitrariness’ such that other less severe measures have been considered and found to be insufficient to safeguard the individual and the public.

There’s likewise a strict limitation on the use of compulsory of detain in the MERS prevention. As mentioned above, MERS doesn’t appear to spread easily among people in public settings, which is exactly why WHO didn’t asked for particular isolation on patients. It can’t be concluded arbitrarily that S.Korean government has the obligations to isolate every MERS suspect, even if it’s been proved to be helpful afterwards.

IV. Public Health Interventions and the Balance between Public and Private

Recently in Weibo (Chinese version of twitter), tens of thousands of netizens are condemning Korean government, arguing the need of arresting the Korean patient and compulsory detention of suspected MERS infectees. Their outrage somehow sets me rethinking the exercise of public health power. It’s on one level surprising, given the vulnerability of many statutory public health powers to challenge on human rights grounds. It is, however, perhaps less surprising when realizing that people have the trend to put more trust than doubts on government, especially in emergency situations like this.

The containment of infectious disease is a continuing public health priority, made more urgent by the threat of newly emerging diseases such as MERS. It is generally accepted that states and communities have the right, if not a moral mandate, to protect its citizens against disease harms, and that such protection may well require some intrusion into individual rights and individual interests. Determination of criteria for when such intrusion is appropriate is problematic, and is contingent on the identification and perception of risk.

The question of the balance in the context of infectious disease needs to be addressed and consideration given to incorporation of a precautionary approach into public health legislation. The emergence of a disease such as MERS serves to bring the debate to public attention, and at such time there is usually public and media support for strong public health powers to contain disease. It is arguable, however, that such a debate should not take place in the headlights of an oncoming threat, but rather we should be deciding now the balance we would wish to see between public benefit and private rights. The decision in Enhorn prioritized the private right of liberty over the public benefit of disease protection in a case of HIV/AIDS, despite that there was some risk to public health. The extent to which this decision can serve as a precedent where the risk is of large-scale, fastspreading disease of unknown virus is still questionable.

V. Conclusion

In the above paragraphs, I analyze the behavior of S. Korean government and health authorities in the prevention of MERS, then come to the discussion of striking a balance between human rights and public health power. It’s somehow thought-provoking, that while people protested vehemently against S. Korean government on the so called “violation of human rights”, their opinions show unconcern on the MERS suspects as well. In order to achieve effective protection on the right of life and health, balanced measurement shall be taken in to consideration. After all, every approach adopted by government shall comply with principles of proportionality and freedom from arbitrariness. Based on the above-mentioned fact, there’s still a long way to go.

 

 

 

[1] See Kelley Lee, “The Impact of globalization on public health: implications for the UK Faculty of Public Health Medicine” (2000) 22 Journal of Public Health Medicine 254.

[2] See Xinhua net ”MERS-infected S. Koreans rise to 30, tertiary infection added”. http://news.xinhuanet.com/english/2015-06/03/c_134292937.htm

[3] The patient refused to drop the trip plan, then violated the quarantine order and disembarked in Hong Kong.

[4] See Fidler, David P., Heymann, David L., Ostroff, Stephen M., O’Brien, Terry P. Emerging and Reemerging Infectious Diseases: Challenges for International, National, and State Law, International Lawyer(ABA), Vol. 31, Issue 3(Fall 1997), p774.

[5] See M. McDOUGAL, H. LASSWELL & L. CHEN, Human Rights and World Public Order 413-15 (1980).

[6] See section 69(2)(a)–(d). For discussion on the assessment of risk in Australian legislation, see C. Reynolds, Public Health: Law and Regulation (Federation Press 2004) not so serious, “restriction” might be a better description on the limitations of the relevant human rights.

[7] Judgment of 25 January 2005, Application no. 56529/00;


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