| by Ruwantissa Abeyratne
( August 8, 2014, Montreal, Sri Lanka Guardian) At the time of writing, 932 deaths had been confirmed in Guinea, Liberia, Sierra Leone and Nigeria due to Ebola, among 1711 reported cases in those countries. In addition, two American medical staff had also been infected. and Liberia had declared a state of emergency. The spread of the disease from West Africa to other parts of Africa is treated by the World Health Organization and concerned States as critical. Ebola is a human to human disease caused by the Ebola virus where symptoms appear between two days to three weeks in a victim. The symptoms are fever, sore throat, headaches and bleeding. The virus spreads by direct contact through bodily fluids such as sweat, saliva or blood and it has not been confirmed that it is contagious through airborne vectors that are usually transmitted through sneezing and coughing. Ebola can be contained by isolating the affected person while testing is done and by tracking those who might be affected. There is no known vaccine or cure, and the mortality rate in the current outbreak has been the worst so far for Ebola - around 90 per cent.
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In March, when a person living in Winnipeg returned from Liberia to Canada with fever, Canadian health authorities went on high alert taking precautions which included addressing the risk of the spread of communicable disease through aviation.
In the aviation context, responsibility devolves upon States to take global measures and cooperate globally in curbing communicable diseases. Article 14 of the Convention on International Civil aviation (Chicago Convention) provides that each State agrees to take effective measures to prevent the spread by means of air navigation of cholera, typhus (epidemic), smallpox, yellow fever, plague, and such other communicable diseases as the States shall from time to time decide to designate, and to that end Contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft. Such consultation is required to be without prejudice to the application of any existing international convention on the subject to which the States may be parties.
This provision imposes a responsibility on States to take measures in preventing the spread of disease through air transport. It is a very resilient provision that was designed to address communicable diseases prevalent in 1944 but leaves the door open to be inclusive to modern day diseases, two of which were SARS and the Avian Flu pandemic. This provision also explicitly devolves primary responsibility on States to take effective measures to prevent airborne diseases in aircraft and implicitly requires States to issue guidelines for airlines, by liaising with the international agencies concerned. Non obstante, airlines have to face certain legal issues themselves in terms of their conduct. Primarily, airlines are expected to conform to applicable international health regulations and the laws of the countries in which their aircraft land. Furthermore, the airline owes its passengers a duty of care to exercise all caution in protecting their rights, so that a blatant instance of a person who looks sickly and coughs incessantly at the check‑in counter cannot be ignored. Common law principles of tort law vigorously distinguish between negligence, recklessness and wilful blindness. Of these elements of liability, wilful blindness is particularly relevant since it brings to bear the need for an airline to be vigilant in observing passenger profiles in potentially dangerous or threatening situations.
Granted, Ebola is not known to be contagious but infectious, which would mean that the chances of one passenger contracting the disease by merely sitting next to another who has a cough might not be heavy. However, one must not discount the use of toilets in the aircraft where one could come into contact with the bodily fluids of an infected person.
One of the major preoccupations of the World Health Organization (WHO) is to ensure the international prevention of disease. Quarantine regulations, which was the first step toward this aim, has a long history, having been introduced during the tenth Century. WHO adopted International Health Regulations in 1951, the philosophy of which was recognized subsequently as: "to prevent international spread of disease, and in the context of international travel, to do so with the minimum of inconvenience to the passenger". This requires international collaboration in the detection, reduction or elimination of the sources from which infection spreads rather than attempts to prevent the introduction of disease by legalistic barriers that over the years have proved to be ineffective.
Of course, the purpose of this philosophy will be defeated if individual States have no willingness or the political will to notify the outbreak of communicable diseases to WHO, particularly in the absence of a monitoring body, incentives for States to notify or sanctions. Therefore the preeminent obligation of States is to ensure that the outbreak of any communicable disease is notified in a manner that would benefit the world and help prevent the spread of the disease across national boundaries. Regrettably, there have been instances recorded where WHO reports that no new instances of a communicable disease has been recorded while the news media give contrary information simultaneously. One of the reasons adduced for the lack of interest on the part of States to report the incidence of communicable diseases to a world body such as WHO has been identified as the lack of importance attributed to International Health Regulations (IHR) by States who consider the regulations as an obsolete relic.
The international health dimension of public health events in aviation involves human rights issues as well. International human rights law has laid down two critical aspects relating to public health: that protection of public health constitutes legitimate grounds for limiting human rights in certain circumstances ( such as detention of persons or house arrest tantamount to quarantine exercises would be justified in order to contain a disease) ; and individuals have an inherent right to health. In this context it is not only the State or nation that has an obligation to notify WHO of communicable disease but the human concerned as well, who has an abiding moral and legal obligation. In 1975, WHO issued a policy statement which subsumed its philosophy on health and human rights which stating: "The individual is obliged to notify the health authorities when he is suffering from a communicable disease ( including venereal diseases) or has been exposed to infection, and must undergo examination, treatment, surveillance, isolation or hospitalization". In particular, obligatory isolation or hospitalization in such cases constitutes a limitation on freedom of movement and the right to liberty and security of person.
It is critical for an evaluation of the health and aeronautical implications of SARS that the term “health” be defined in context. While the WHO Constitution identifies as an objective of the Organization “attainment of the highest possible level of health”, the state of health is defined as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. In an aeronautical perspective, this is a tough act to follow, as international responsibility in the carriage of persons extends only as far as the obligation to prevent injury, wounding or death, and not to the physical or mental well-being of a person.
However, this is one area where the International Civil Aviation Organization (ICAO) has responded well, if its response to the SARS crisis in 2003 is any indication. The enormity of the problem is brought to bear by the response of the ICAO which issued guidelines on 2 May 2003 urging member States to: implement pre-boarding medical screening of passengers at check-in; provide all incoming passengers with a detailed information leaflet on SARS; implement medical screening of passengers arriving directly from or via affected areas; advise pilots to radio ahead if someone on board exhibits SARS symptoms; instruct crew on dealing with suspected SARS-patients in flight; and disinfect aircraft on which a suspected SARS-patient has travelled.
In July this year, ICAO issued a press release advising that the Organization was collaborating with WHO on the Ebola outbreak in West Africa. ICAO acts through the Cooperative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) which is a global, collaborative arrangement between International Organizations, including ICAO, WHO, UNWTO, WFP, IATA, ACI, and other bodies. CAPSCA aims to improve preparedness plans in the aviation sector for public health emergencies, or potential emergencies, that can arise from communicable diseases.
The efforts of the aviation community notwithstanding, the ultimate responsibility lies in the States affected to take every measure in arresting the spread of the disease by taking effective measures of quarantine, isolation and infusing a culture of awareness in their communities. The ultimate aim should be to go to the root of the problem and attack it. Of course, aviation can help in this role by carrying by air much needed medical staff, medication and equipment swiftly and efficiently.
The author is an aviation consultant who is a former senior official at the International Civil Aviation Organization