Rights-Based Approaches to Preventing, Detecting, and Responding to Infectious Disease

Abstract

Policymakers have come to look to human rights law in framing national health policy and global health governance. Human rights law offers universal frameworks to advance justice in public health, codifying international standards to frame government obligations and facilitate accountability for realising the highest attainable standard of health. Addressing threats to individual dignity as ‘rights violations’ under international law, health-related human rights have evolved dramatically to offer a normative framework for public health.

Full text

Rights-Based Approaches to Preventing,
Detecting, and Responding to Infectious
Disease
Benjamin Mason Meier, Dabney P. Evans, and Alexandra Phelan
Policymakers have come to look to human rights law in framing national health
policy and global health governance. Human rights law offers universal frameworks
to advance justice in public health, codifying international standards to frame gov-
ernment obligations and facilitate accountability for realising the highest attainable
standard of health. Addressing threats to individual dignity as ‘rights violations’
under international law, health-related human rights have evolved dramatically to
offer a normative framework for public health. Yet, public health efforts to address
infectious disease continue to employ mechanisms that infringe individual rights—
from the recent Ebola epidemics in Sub-Saharan Africa to the ongoing COVID-19
pandemic that threatens the world—with public health laws violating individual
bodily integrity through vaccination and treatment mandates, violating individual
medical privacy through surveillance and reporting, and violating individual lib-
erty through quarantine and isolation. This chapter examines the implementation of
human rights law in infectious disease control, analysing rights-based approaches to
prevent, detect, and respond to infectious disease outbreaks.
Part I outlines the theoretical framework for health and human rights and describes
evolving efforts to balance individual rights protections against government public
B. M. Meier (B)
Department of Public Policy, University of North Carolina at Chapel Hill, Chapel Hill, NC, USA
e-mail: bmeier@unc.edu
O’Neill Institute for National & Global Health Law, Georgetown University, Washington,
DC, USA
D. P. Evans
Global Health at the Hubert Department of Health, Rollins School of Public Health, Emory
University, Atlanta, GA, USA
A. Phelan
Department of Law, Georgetown University Law School, Washington, DC, USA
Assistant Professor, Center for Global Health Security, Georgetown University, Washington,
DC, USA
© Springer Nature Switzerland AG 2020
M. Eccleston-Turner and I. Brassington (eds.), Infectious Diseases in the New
Millennium, International Library of Ethics, Law, and the New Medicine 82,
https://doi.org/10.1007/978-3-030-39819-4_10
217

218 B. M. Meier et al.
health practices. Where human rights were long neglected in international health
debates, early government reactions to the HIV/AIDS pandemic catalysed human
rights as a basis for public health, as advocates looked explicitly to human rights
as being ‘inextricably linked’ to public health efforts. Amidst the heightened fear
and emerging advocacy that structured the early years of the AIDS response, poli-
cymakers sought to implement human rights law in public health policy—viewing
discrimination as counterproductive to public health goals, abandoning coercive tools
of public health practice, and applying human rights to focus on the individual risk
behaviours leading to HIV transmission. Moving towards a focus on collective rights,
viewing public health itself as a human right, these human rights claims have sought
to address underlying population-level determinants of health in a rapidly globalising
world.
These human rights have since come to hold a central place in framing public
health policy, and Part II examines the ways in which these health-related human
rights have been applied to realise non-discrimination and equality; autonomy, bodily
integrity, and informed consent; participation; and the right to health. By recognising
an inextricable linkage between public health and human rights, the health and human
rights movement could move away from its early focus on the conflicts between pub-
lic health practice and individual human rights, employing human rights promotion
to advance public health goals. However, infectious disease control efforts continue
to challenge the notion that individual rights are always the best approach to support
population health, with recent responses to Ebola and COVID-19 continuing to rely
on national policies that unnecessarily limit individual rights to protect public health.
The human rights infringements resulting from these violative national policies high-
light the continuing need for rights-based global health governance in preventing,
detecting and responding to infectious disease.
In the new millennium, global health governance has sought to balance infec-
tious disease imperatives for the public’s health with individual dignity protections
in human rights, and Part III analyses how global health law has framed this balance
between public health and human rights. International law has long been seen as
essential to the international cooperation necessary to address the global threat of
infectious disease, but human rights were never addressed under global health law
until the 2005 revision of the International Health Regulations. This 2005 revision
explicitly looked to human rights for the first time—as a basis to respect human dig-
nity and bodily integrity across states in the national implementation of infectious
disease control measures. Despite this recent promise of universal human rights
in global health governance, the 2014 development of the Global Health Security
Agenda reverts to the ‘securitisation’ of public health to frame national efforts to
prevent, detect, and respond to infectious disease. As nations again resort to unnec-
essary human rights infringements, abandoning global solidarity and international
law in their emergency responses to the COVID-19 pandemic, it remains unclear how
human rights law will be implemented through global health governance to support
the future of infectious disease control.
This chapter concludes that the rights-based approach to infectious disease con-
trol has evolved—under human rights law, as applied to national policy, and in the

Rights-Based Approaches to Infectious Disease 219
development of global health governance—yet there remains little assessment of how
these approaches either realise or infringe upon human rights in the pursuit of public
health. Calling for a human rights research agenda to assess infectious disease con-
trol policies, programmes, and practices throughout infectious disease responses, this
chapter proposes human rights monitoring of infectious disease control as a basis to
facilitate accountability for the implementation of international human rights under
global health law.
1 Health and Human Rights
Human rights law offers international frameworks to facilitate accountability for
social justice in efforts to prevent, detect, and respond to infectious disease. Instru-
mental to human dignity, human rights address basic needs and frame individual
entitlements, conceptualising international imperatives to uphold a universal vision
of global justice.1By addressing threats to dignity as ‘rights violations,’ interna-
tional law offers global standards by which to frame government responsibilities
and evaluate policies and outcomes under law, shifting the policy debate from politi-
cal aspiration to legal obligation.2Empowering individuals to seek accountability for
these government obligations rather than serving as passive recipients of government
benevolence, human rights law identifies individual rights-holders and their entitle-
ments and corresponding duty-bearers and their obligations.3The state becomes the
principal duty-bearer of human rights upon ratification of the underlying international
human rights treaty, with the government thereafter accepting resource-dependent
obligations to ‘progressively realise’ a human right ‘to the maximum of its available
resources, with a view to achieving progressively the full realisation of the rights’.4
Building upon state obligations to realise the public’s health, human rights can be
seen both to protect individual rights from infringement in the pursuit of infectious
disease control and to promote collective rights to underlying determinants of health.
1.1 Responsibilities of the State for Public Health
Public health encompasses the policies, programmes, and practices of a government
to realise the collective rights of its peoples to health. Rather than focusing on the
health of individuals, public health focuses on the health of societies.5At its most
1Donnelly (2003).
2Gostin (2014).
3Steiner et al. (2008).
4UN General Assembly, ‘International Covenant on Civil and Political Rights’ (Res. 2200A (XXI),
16 December 1966) art. 2; Felner (2009).
5Rose et al. (1999).

220 B. M. Meier et al.
basic, ‘[p]ublic health is what we, as a society, do collectively to assure the condi-
tions for people to be healthy’.6States have long recognised a responsibility to protect
their peoples from infectious disease threats,7developing varied approaches of what
must be done at a population level to assure ‘underlying determinants of health’.8
Whereas medicine focuses primarily on individual curative treatments in clinical
settings, public health actions protect and promote9the health of entire societies
by using multi-disciplinary interventions and multi-sectoral approaches to address
the economic, political, and social determinants that underlie the public’s health.10
Under this expansive view, public health responds to the fundamental underlying
structures affecting health, involving, inter alia, disease outbreaks, demographic pat-
terns, economic distributions, and deleterious behaviours. In meeting these collective
challenges, public health approaches are often designed to achieve ‘the greatest good
for the greatest number’, applying a utilitarian lens as a basis to control the spread
of infectious disease.11
1.2 Individual Rights in Tension with Public Health
Where human rights protect the individual, these individual rights are often seen to
be in tension with state responsibilities to protect the public’s health. Public health,
in ensuring that societies can be healthy, often includes government intervention to
restrict individual rights to protect the general welfare. In this conflict between col-
lective benefit and individual restrictions, policymakers have long grappled with the
appropriate balance between individual rights protection and public health promo-
tion. In the development of human rights law, World War II showed the world the
horrors that could occur under the guise of public health, and human rights would be
codified under the post-war United Nations (UN) as a means to prevent public health
authorities from infringing individual human rights. Out of this UN development
of human rights law to protect individuals from public health practices, scholars
and practitioners in the 1980s came to recognise the ‘inextricable linkages’ between
public health and human rights, examining the ways in which the public health lens
and human rights paradigm can complement each other in preventing disease and
promoting health.
6The Institute of Medicine (1988) 19; see also Brockington (1968).
7Fidler (2002).
8Gostin (2001).
9Raeburn and Macfarlane (2003).
10Beaglehole and Bonita (1997).
11Holland (2015).

Rights-Based Approaches to Infectious Disease 221
1.2.1 Birth of Human Rights in Response to the Public Health State
The notion of human rights under international law as a basis for public health finds
its roots in the horrors that occurred during World War II and the standards laid down
by the war tribunals that followed.12 International human rights law was seen as a
direct response to public health actions that infringed on individual liberties during
the war. In articulating health-related human rights, the so-called ‘Doctors Trial’ of
Nazi health practitioners by the International Military Tribunal at Nuremberg formed
a key foundation for early post-war human rights developments.13
The atrocities committed by Nazi physicians during World War II, enabled by
the German public health establishment, reflected a complete disregard for the value
of human life and the inherent dignity of research subjects.14 Beginning in 1933,
the German Reich advanced public health theories of eugenics as the basis for pro-
mulgating the Law for the Prevention of Genetically Diseased Offspring, which
outlined processes for the voluntary and mandatory sterilization of myriad ‘hered-
itary defects’.15 Pursuant to these so-called ‘racial hygiene’ programmes, German
public health physicians sterilized between 300,000 and 400,000 German citizens
prior to the war.16 At the onset of war, the Nazi medical establishment moved from
the sterilization to the killing those deemed to be ‘incurably ill’.17 During the war,
with eugenics holding widespread acceptance in the state medical establishment,
German physicians voluntarily aided in theorizing, planning, and operating Nazi
killing programmes, which had then expanded from patients of German state hos-
pitals to inmates of Nazi concentration camps.18 Founded upon debased notions of
public health, physicians exterminated millions to prevent the spread of purported
diseases and defects.19 Rather than questioning the ethical propriety of their actions,
Nazi physicians enthusiastically performed acts of genocide, acting under a strong,
albeit perverse, belief that they were working in accordance with the sound medical
principle of ‘healing the state’.20 The genocidal horrors and human experimentation
of the Holocaust would not have been possible without the professional legitimation
and direct participation of the public health establishment.
Given these wanton violations of individual life and liberty in the course of the
War, human rights, inhering in every individual simply by virtue of being human,
would become the cornerstone of the post-war world. The Doctors Trial of 1946–
1947, in which U.S. judges at Nuremberg passed judgment on Nazi physicians and
health workers, would mark the first international criminal prosecution of health
12Moyn (2010).
13Annas and Grodin (1992).
14See Taylor (1992).
15Lippman (1993).
16Sidel (1996).
17Lippman (1992).
18Barondess (1996).
19Lippman (1992).
20Malinowski (2003).

222 B. M. Meier et al.
workers for ‘crimes against humanity’, uncovering widespread patient and subject
harms that would come to be seen as violations of human rights.21 Rebuilding a
world out of the ashes of World War II, every human being would be seen as equal
in dignity and rights, with these human rights serving as a protection against state
public health actions.
1.2.2 Derogation from Individual Rights to Protect Public Health
Notwithstanding this primacy of individual dignity and rights, international law sup-
ports the derogation of certain individual rights to protect the public’s health. Where
a right is considered derogable (capable of being temporarily suspended), the pro-
tection of public health is seen as a legitimate reason for government interference to
promote the general welfare.22 In clarifying the derogation of human right to protect
public health, the evolution of international human rights law has sought to: define
which rights are derogable, limit the grounds for rights derogation, and outline the
processes of derogating rights.
Beginning with the 1948 Universal Declaration of Human Rights (UDHR), states
agreed that ‘[e]veryone shall be subject only to such limitations as are determined by
law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others…’.23 Translating this non-binding declaration into international
treaty law, the 1966 International Covenant on Civil and Political Rights (ICCPR)
articulated the grounds for human rights derogation, stipulating that an ‘[o]fficial
proclamation of public emergency allows deviation from other obligations to the
extent required’.24 These derogable rights would be specified in the context of a
public health emergency, noting that the ‘right to liberty of movement is…subject to
restrictions necessary to protect public health or morals or the rights and freedoms
of others’.25 The ICCPR would thus specify three principal grounds for derogation:
1. To secure due recognition and respect for the rights and freedoms of others;
2. To meet the just requirements of morality, public order, and the general welfare;
or
3. In time of emergency, where there are threats to the vital interests of the nation.
21Annas and Grodin (1992).
22Gostin and Mann (1994).
23UN General Assembly, ‘Universal Declaration of Human Rights’ (Res. 217 A (III), 10 December
1948) art. 29.
24UN General Assembly, ‘International Covenant on Civil and Political Rights’ (Res. 2200A (XXI),
16 December 1966) art. 4.
25UN General Assembly, ‘International Covenant on Civil and Political Rights’ (Res. 2200A (XXI),
16 December 1966) art. 12.

Rights-Based Approaches to Infectious Disease 223
As states came to recognise that ‘public health may be invoked as a ground for
limiting certain rights’,26 scholars developed a set of principles to assure that such
limitations on rights occur only ‘in narrowly defined circumstances’, holding that
such human rights infringements only be undertaken:
1. When applied as a last resort;
2. When prescribed by law (i.e., not imposed arbitrarily);
3. When related to a compelling public interest (e.g., protection of public health);
and
4. When found to be necessary, proportional to the public interest, and without less
intrusive or restrictive measures available.27
Balancing the societal benefit to public health against the state infringement of indi-
vidual rights, various legal scholars have sought to develop balancing tests to under-
stand the specific circumstances in which it is necessary to restrict human rights
to protect public health. These ‘human rights impact assessments’ have sought to
measure the human rights impacts of public health policies and scrutinise disease
prevention efforts to:
1. Clarify the public health purpose, narrowing public health goals to avoid
overburdening rights;
2. Evaluate likely policy effectiveness, questioning whether the means undertaken
will achieve the public health purpose;
3. Determine whether the public health policy is well targeted, recognizing the
dangers of over-inclusiveness; and
4. Examine each public health policy for possible human rights burdens, looking
to (1) the nature of the human right, (2) the invasiveness of the intervention, (3)
the frequency and scope of the infringement, and (4) its duration.28
1.2.3 Recognizing the “Inextricable Linkages” Between Public Health
and Human Rights
Reversing a history of neglect for human rights in international health debates
throughout the height of the Cold War, the advent of the AIDS response opera-
tionalised human rights as a foundation for public health, as scholars and advocates
looked explicitly to human rights law in framing public health practice. Govern-
ments had initially sought to react to the emergent threat of AIDS through tradi-
tional infectious disease practices—including compulsory testing, named reporting,
26UN Commission on Human Rights, ‘The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights (UN Doc E/CN.4/1985/4,
1984) art. 25.
27UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4,
28 September 1984.
28Gostin and Mann (1994).

224 B. M. Meier et al.
travel restrictions, isolation and quarantine, and other rights derogations—yet human
rights were seen as a protection against these intrusive government infringements
on individual liberty and a bond for stigma-induced cohesion among HIV-positive
activists.29 In this period of emerging rights-based activism, Jonathan Mann’s tenure
at the World Health Organisation (WHO) marked a turning point in the application
of individual human rights to public health policy, viewing discrimination and coer-
cion as counterproductive to public health goals and applying human rights to focus
attention on the individual risk behaviours leading to HIV transmission.30 Mann’s
vocal leadership of the WHO Global Programme on AIDS, formally launched in
1987, shaped formative efforts to create a rights-based framework for global health
governance and national health policy.31 Drawing from international human rights
standards, public health policies came to stress the need for risk reduction programs
to respect and protect human rights as a means to achieve the individual behaviour
change necessary to reduce HIV transmission.32
In looking beyond individual behaviours in the HIV/AIDS response, Mann sought
to extend the promise of human rights in addressing underlying population-level
determinants of health—viewing rights realisation as supportive of ‘a broader, soci-
etal approach to the complex problem of human wellbeing’.33 Mann cautioned that
HIV would inevitably descend the social gradient, calling for the rights-based exam-
ination of socioeconomic, racial, and gender inequities in abetting the spread of
the disease.34 Through this consideration of the collective determinants of vulnera-
bility to HIV infection—rejecting the paradigm of complete individual control for
health behaviours, a basic premise of the individual rights framework—the health and
human rights movement shifted away from its early focus on the conflicts between
public health responsibilities and human rights obligations.35 Out of this recognition
of a mutually-reinforcing linkage between public health and human rights, Mann
proposed a tripartite framework to describe the effects of (1) human rights viola-
tions on health, (2) public health policies on human rights violations, and (3) human
rights protections on public health promotion.36 Given this focus on population-level
determinants of vulnerability, Mann argued that ‘since society is an essential part
of the problem, a societal-level analysis and action will be required’, calling for a
rights-based AIDS agenda that would frame policies for access to costly medical
treatments while maintaining a commitment to infectious disease prevention efforts
focused on education, health services, and underlying environments for the public’s
health.37
29Curran et al. (1987), Kirby (1988), Bayer (1991).
30Fee and Parry (2008).
31Gruskin et al. (2007).
32World Health Organization (1988), Mann and Tarantola (1998).
33Mann (1996).
34Mann (1992).
35Gruskin et al. (1996).
36Mann et al. (1999).
37Mann (1999).

Rights-Based Approaches to Infectious Disease 225
1.3 Beyond the Individual/Public Health Divide
Where health-related human rights were largely framed through an individual rights-
holder in the latter half of the twentieth century, these individual rights have increas-
ingly proven incommensurate to the globalised public health threats of the new
millennium, unable to speak with the collective voice through which infectious dis-
ease control efforts must be heard. Infectious disease control efforts represent a
global public good, and public goods cannot easily be realised through the individ-
ualistic lens of human rights. Reframing the realization of the individual right to
health, a collective right to public health has become necessary to give meaning to
the health-related human rights of populations, addressing population-level public
health interests in infectious disease prevention, detection, and response.
Legal discourses at the intersection of health and human rights have often failed to
view public health itself as a human right. Although the tension between individual
human rights obligations and governmental public health responsibilities dominated
early health and human rights discourses,38 an emphasis on this conflict undermines
health-related human rights. Whereas many scholars continue to focus on individual
negative rights—i.e., those that restrain government action from infringing upon indi-
vidual liberties—a positive human rights framework acknowledges that governments
must act affirmatively to fulfil the economic and social aspects of human rights.39
Fulfilling these positive components of health-related human rights requires both an
individual right to health and collective rights to public health.40
Normative concern for underlying determinants of public health has become a cor-
nerstone of infectious disease control, laying a foundation for the modern health and
human rights movement. This movement draws from social medicine—arising out
of the industrial revolution in Prussia and France and revitalized during World War
II in Great Britain—with social medicine long viewing public health as an interdis-
ciplinary social science that can examine how socioeconomic inequalities shape the
health of populations.41 Finding that illnesses have multiple population-level causes,
social medicine scholars have looked to multisectoral social and political reforms
(i.e., underlying determinants of health) rather than medicine as a means of promot-
ing health for the most vulnerable.42 In the context of international relations, social
medicine defined public health as an inherent matter of government concern, separate
and apart from the historical role of international health law in the international pro-
jection of economic power and national protection of security interests. Incorporated
into international law, such a normative focus on underlying determinants of health
was elevated in the aftermath of World War II through the holistic goal proclaimed
38Childress and Bernheim (2003), King (1999), Gostin and Lazzarini (1997).
39Marks (2001).
40Meier and Mori (2005).
41Rosen (1974).
42Ryle (1948), Sand (1934).

226 B. M. Meier et al.
by states in the WHO Constitution: ‘health is a state of complete physical, mental
and social wellbeing and not merely the absence of disease or infirmity’.43
Under this rights-based vision of social medicine to address underlying determi-
nants of health, collective rights operate in ways similar to individual rights; however,
rather than seeking to empower the individual, collective rights act at a population
level to assure public benefits that cannot be fulfilled through individual rights mecha-
nisms.44 While Western scholars long presupposed an opposition between individual
and collective human rights,45 this distinction is inappropriate to infectious disease
control in a globalizing world, where the goals of an individual right to health and
a collective right to public health complement each other.46 Combating the health
disparities of a globalized world requires renewed human rights focus—in national
policy and global governance—on these collective population-level concerns that
underlie the spread of disease.
2 National Rights-Based Public Health Responses
In implementing these rights, national disease control policies frequently navigate
between state responsibilities to protect the health of the public and obligations to
respect the rights of individuals. Balancing tests now detail the rights, conditions, and
processes that allow for the permissible derogation of some human rights towards the
goal of protecting public health—where rights infringements should be, as reviewed
above, based on justifiable limitations, responsive to a pressing social need, in pursuit
of a legitimate aim, and proportionate to the health challenge.47 State actors are
responsible for most human rights infringements, whether permissible or not, and
therefore national responses are of utmost importance.
States are in a position in which they have both the duty to respect, protect, and
fulfil the right to health and other health-related rights and the power to legitimately
restrict rights in order to protect public health.48 Most frequently, it is the state’s obli-
gation to respect (or refrain from violating) the rights of individuals that is at odds with
its responsibility to protect populations—highlighted by rights-infringing efforts to
prevent, detect, and respond to infectious disease. This misalignment may create a
43World Health Assembly, ‘Constitution of the World Health Organization’ (signed on 22 July
1946, entered into force 7 April 1948) preamble.
44Marks (2004).
45VanderWal (1990).
46Meier (2006).
47UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, UN Doc. E/CN.4/1985/4,
28 September 1984.
48UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000); UN General Assembly, ‘International Covenant on Civil and
Political Rights’ (Res. 2200A (XXI), 16 December 1966) art. 11.

Rights-Based Approaches to Infectious Disease 227
dual loyalty, where state obligations to respect individual rights may conflict with
responsibilities for promoting public health. In order to appropriately balance com-
peting interests, states may look to established international human rights norms and
principles for guidance—either prospectively (to guide state public health actions)
or retrospectively (to consider missed opportunities to respect rights). Applied in
the context of national infectious disease control policies, such norms and principles
include those necessary for (1) dignity, (2) non-discrimination, (3) participation, and
(4) the right to health.
2.1 Dignity: Bodily Integrity and Autonomy
Although never explicitly defined within the human rights corpus, human dignity
explicitly underpins all international human rights. The preambular text of the UN
Charter states that one of the principal purposes of the UN is ‘to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person’.49 Scholars
have long debated the precise conceptualisation of the relationship between human
dignity and human rights.50 Central to bodily integrity and autonomy, dignity is given
concrete application in rights-based approaches to prevent, detect, and respond to
infectious disease.
Public health practices of isolation and quarantine serve as paradigmatic examples
of public health approaches to infectious disease control that may infringe upon
individual autonomy via limitations on movement. In the case of isolation, infected
individuals are contained to prevent the spread of disease; quarantine is used to
confine healthy individuals who have been exposed to disease. The case of ‘Typhoid
Mary’ (who was forcibly isolated after her repeated refusal to cooperate with public
health authorities in preventing the spread of her asymptomatic typhoid) exemplifies
the need, at times, for state intervention in restricting freedom of movement.51 In
the government exercise of isolation and quarantine—including the contemporary
application of travel restrictions (both within a country and applied to travelers from
other countries) in response to COVID-19—the individual right of free movement is
in tension with the protection of public health; thus, the rights of the individual are
infringed to protect the collective interests of the larger population.
Relatively recent responses to infectious disease outbreaks—particularly among
new or previously unknown infections—have remained grounded in these age-old
public health practices. In the early years of the HIV response, the Cuban government
was strongly criticised for its use of HIV isolation facilities, known as sanatoriums.52
This isolation practice undoubtedly infringed upon the dignity of people living with
49United Nations, ‘Charter of the United Nations’ (UN Doc. UNTS XVI, 24 October 1945)
preamble.
50Donnelly (1982), McDougal et al. (1980).
51Marineli et al. (2013).
52Bayer and Healton (1989), Hoffman (2004).

228 B. M. Meier et al.
HIV/AIDS (PLHA). However, those in the sanatoriums enjoyed access to higher
food rations, specialized care for HIV, and relief from employment responsibilities,
benefits that were seen as especially advantageous during Cuba’s post-Cold War
economic crisis, known as the ‘special period’.53 While the government has stepped
away from these rights-infringing practices—employing the sanatoriums now as
training centres for HIV diagnosis, education, and care management—Cuba con-
tinues to have one of the lowest rates of HIV/AIDS in the region, a public health
outcome attributed their early rights-restricting HIV containment practices.54 The
2014–16 Ebola Virus Disease epidemic similarly highlighted how well-intentioned
public health efforts can infringe individual rights. In Liberia, residents of the West
Point neighbourhood were quarantined despite a lack of evidence that the virus was
more prevalent there than elsewhere in thecountry. In the United States, a nurse who
tested negative for Ebola was nevertheless confined to isolation, although a court
would later overturn this derogation of her rights and restriction on her movement.55
Setting a precedent for current lockdowns during the rapidly spreading COVID-19
pandemic, these examples highlight the need for scientific evidence in public health
decision making, even in the course of ongoing infectious disease outbreaks; where
there is little scientific information related to new and emerging pathogens, research
is warranted to understand the threats such pathogens pose to the public’s health
and the responses that are necessary to prevent disease. These data are critical in
balancing risks and benefits to determine the most appropriate and least burdensome
policy response, especially when individual rights restrictions include limitations on
movement.
Such state restrictions on individual autonomy to protect public health may extend
beyond limitations on physical movement to include mandatory treatment. Estab-
lishing a precedent for state vaccine mandates that stands to this day, the U.S.
Supreme Court’s 1905 decision in Jacobson v. Massachusetts56 held that the state
could enforce compulsory vaccination laws where individual autonomy was deemed
subordinate to protecting the health of the population.57 Recently, however, there has
been an increase in vaccine-preventable diseases in high-income countries. Despite
being officially eliminated from the United States in 2000, Measles outbreaks have
been reoccurring sporadically throughout the country.58 The resurgence of vaccine-
preventable diseases in such settings has largely been attributed to vaccine opponents,
who refuse vaccinations based upon religious or personal beliefs.59 Notwithstanding
the proven efficacy of vaccines, the result of this opposition has been to increase
53Reed (2011).
54Joint United Nations Programme on HIV/AIDS (UNAIDS), ‘Global Report: UNAIDS Report on
the Global AIDS Epidemic’ (UNAIDS 2013).
55Price (2015).
56Jacobson v Massachusetts (1905) 197 US 11.
57Mariner et al. (2005).
58McCarthy (2015).
59Yang et al. (2015).

Rights-Based Approaches to Infectious Disease 229
non-medical vaccine exemptions and, consequently, led to a higher incidence of
vaccine-preventable disease in ways that threaten the public’s health.60
Vaccine refusal highlights issues of individual responsibility. In the case of vac-
cine opposition (particularly for childhood vaccinations), parents must balance their
perceived risk of vaccines against the potential negative outcomes of infection.61
For many years, this debate was assuaged by broad acceptance of childhood vac-
cinations (bolstered by vaccine mandates for school enrollment), which led to sub-
stantial decreases in the incidence of vaccine-preventable diseases and the estab-
lishment of ‘herd immunity’ at the population level without the need for vaccine
mandates.62 In this way, childhood vaccination programmes have become a victim
of their own success. The anti-vaccine movement—fuelled in recent years by false
concerns about vaccine safety, coupled with religious and philosophical exemptions
to school-based vaccine requirements—has provided an opening for the resurgence
of vaccine-preventable diseases in places where they were previously rare.63 As
exemptions to school vaccine mandates have increased, there has been a waning of
herd immunity (also known as ‘community protection’) against vaccine-preventable
disease. Community protection relies on such population immunity. It is this herd
immunity, not individual disease immunity, that protects a given population. There-
fore, those choosing not to vaccinate remain individually vulnerable to infections,
which can then be transmitted throughout the community. On the global scale, while
vaccines are most frequently viewed as crucial to public health, erroneous percep-
tions about vaccine safety continue to undermine the potential of vaccines to prevent
infectious disease.64 This threat from individual refusal to adhere to public health
guidelines is similarly seen among those flouting social distancing recommendations
to prevent the spread of COVID-19. As a result, public health professionals must re-
examine not only individual autonomy, but also individual responsibility towards the
community—a concept which varies widely across cultural contexts.
Through the lens of human rights, individual responsibility to the community
can be seen as a form of legal duty. Despite cultural variance towards individual
and collective duties, the UDHR clarifies that restrictions of individual rights can
be undertaken as a basis to respect the ‘rights and freedoms of others’ in the com-
munity.65 In the case of exemptions from vaccination, policymakers have sought to
make individual exemptions more rare as a basis to protect the public.66 Beyond
mandates, adherence to the principle of informed consent (including scientifically
accurate information on the risks and benefits of vaccination) addresses misinforma-
tion and safety concerns while simultaneously supporting autonomy and informed
60Omer et al. (2006), Omer et al. (2012).
61Champion and Skinner (2008).
62Roush et al. (2007).
63Gust et al. (2008).
64Larson et al. (2016).
65UN General Assembly, ‘Universal Declaration of Human Rights’ (Res. 217 A (III), 10 December
1948) art. 29.
66Omer (2015).

230 B. M. Meier et al.
decision making. Under this model for balancing individual rights and public health,
receiving a vaccine exemption would be possible, but perhaps more difficult, in an
effort to push individuals towards vaccination. This model could increase levels of
individual vaccination and herd immunity—achieving a public health goal in balance
with standards of human dignity.
2.2 Non-discrimination and Stigma
With this imperative for dignity through human rights requiring an emphasis on non-
discrimination and equality, the attention to vulnerable populations in both human
rights treaties and human rights institutions was born of the Holocaust experience of
World War II, wherein the Nazi crimes against humanity implicated the discrimina-
tory targeting of specific populations. Today, each core human rights treaty includes
a non-discrimination clause that prohibits discrimination on the basis of, at a mini-
mum, race, sex, language, and religion. At times, additional language has been used
to expand beyond these categories, including prohibitions on discrimination on the
basis of disability and health status. Although some of these characteristics were
once viewed as both biologically-dictated and immutable, evolving notions of social
constructions in the context of race and gender have allowed for flexibility and inclu-
siveness, rather than a rigid dogmatism linked to specific terms, in a more expansive
view of human rights.
Human rights protections against stigma and discrimination are now seen as ‘inex-
tricably linked’ to the realisation of public health goals. The emergence of HIV/AIDS
exacerbated the social stigma, homophobia, and racism targeted against injection
drug users, men who have sex with men (MSM), and racial minority groups. Fur-
thering this discrimination through public health policy, the U.S. Centers for Disease
Control and Prevention’s ‘4H club’ identified homosexuals, heroin users, haemophil-
iacs and Haitians as specific at-risk groups. This well-intentioned and catchy phrase
led to devastating results, with vulnerable groups experiencing housing and employ-
ment discrimination, and the impoverished island of Haiti experiencing an 80%
decrease in tourism.67 Such stigma towards risk groups, rather than behaviours, is
currently unfolding in the COVID-19 response, where individuals of Asian descent
have been stigmatised by the label of the ‘Chinese virus’, facing discrimination,
violence, and health care denial based upon racist demagoguery from nationalist
politicians.
Through his work to advance human rights in WHO, Jonathan Mann sought to
identify the linkages between human rights frameworks and the stigma and discrim-
ination faced by vulnerable populations. Mann’s vision of discrimination as harmful
to public health and his understanding that individual behaviour change was key to
disease prevention was prescient, giving rise to a health and human rights movement
that would seek to end discrimination in public health practice. This discrimination,
67PBS Frontline (2006).

Rights-Based Approaches to Infectious Disease 231
embodied by the longstanding US travel ban against HIV-positive individuals, was
finally lifted only in 2010.68 Rather than discussing risk groups or identity groups,
policymakers now talk about risk behaviours underlying infection and key groups.
Where human behaviours and discriminatory attitudes may be exceedingly dif-
ficult to change, laws and policies provide a rights-based foundation upon which
social norms may draw reference. The incorporation of human rights principles into
legal and policy reforms has shown promise in reducing HIV/AIDS-related stigma
and discrimination.69 Legal protections for those infected or in groups at high risk
of HIV infection (including MSM, injection drug users, and commercial sex work-
ers) may prevent and mediate individual and institutionalised forms of stigma and
discrimination.70 These protections are inherently linked to the human rights princi-
ple of non-discrimination; related reductions in stigma surrounding risk behaviours,
mother to child transmission of HIV, and HIV testing and treatment remain vital to
both discrimination against vulnerable populations and reduction of disease trans-
mission.71In the context of COVID-19, stigma and discrimination act as kindling
for the spread of the infection among detained populations and homeless people
who are vulnerable because of both their housing and their membership in socially
stigmatized groups.
2.3 Participation
The participation of civil society and affected populations in holding duty bearers
accountable for implementing these human rights obligations is a critical princi-
ple for the advancement of human rights. Such participation is necessary, in large
part, because states are both duty-bearers and the most frequent violators of human
rights.72 This engagement in government processes is extremely important; in the
case of health, participation in political debates may entail opportunities for direct
action where community members are affected by health care goods, facilities, and
services.73 As such, participation plays a vitally important role in infectious disease
control. In the South African case of the Ministry of Health vs. Treatment Action
Campaign (TAC), the South African Constitutional Court found that the state was
responsible under the right to health for the provision of antiretroviral drugs to preg-
nant persons for the prevention of mother to child transmission of HIV.74 TAC played
a critical participatory role in both bringing the legal case and advocating publicly for
the availability of antiretrovirals for all HIV-positive South Africans. Civil society
68Preston (2009).
69Mahajan et al. (2008).
70Rhodes et al. (2005).
71Mahajan et al. (2008).
72Potts (2008).
73Meier et al. (2012).
74Giliomee and Mbenga (2007).

232 B. M. Meier et al.
groups, including non-governmental organizations, can also play an important formal
role within international human rights mechanisms through the provision of shadow
reports to the UN bodies responsible for monitoring human rights treaty compliance.
While the UN Committee on Economic, Social and Cultural Rights is the primary
treaty body responsible for monitoring the right to health, numerous other human
rights bodies examine health-related human rights, incorporating participation from
civil society actors in their assessments of national human rights implementation
efforts.75
Community members can additionally be health agents locally, acting as health
resources, improving governmental capacity for health, and supporting primary
health care.76 However, doctors, nurses, and public health professionals often face
dual loyalty when, as in many countries, they work within national health systems.77
Health professionals employed by such systems are state actors and have professional
obligations to their employers, but at the same time, they have ethical obligations to
those affected by health systems. While setting health policy, health professionals
may also be directly providing health services at the community level.
Advancing their work as health agents, some community members may pursue
formal medical and public health training, engaging in the health sector by becoming
health practitioners while simultaneously representing the interests of their commu-
nities. Innovative models of medical and public education such as that of the Latin
American School of Medicine (ELAM), which has the right to health mainstreamed
throughout its curriculum, facilitate the training of disadvantaged groups who are
most likely to return to serve their home communities.78 The purposeful recruitment
of marginalised populations into the health professions has shown demonstrated
benefits for participation in the health system.79
It is not only those with clinical training who can participate in community level
health delivery. The Chinese ‘Barefoot Doctors’ programme of the late 1960s estab-
lished a framework for community based primary health care. Since 1970, Where
There Is No Doctor has become one of the most widely used health care manuals,
and both WHO and UNICEF use the text in their field offices, equipping readers with
vital health information for personal and community based decision making.80 The
text has been credited with making basic health information, including information
75See, for example, United Nations (UN), ‘NGO Participation at CEDAW sessions’ (UN Women)
http://www.un.org/womenwatch/daw/ngo/cedawngo.
76International Conference on Primary Health Care, ‘Declaration of Alma-Ata’ (6–12 September
1978).
77Physicians for Human Rights & School of Public Health and Primary Health Care, University of
Cape Town, Health Sciences Faculty, ‘Dual Loyalty & Human Rights in Health Professional Prac-
tice; Proposed Guidelines & Institutional Mechanisms’ (2002) https://s3.amazonaws.com/PHR_
Reports/dualloyalties-2002-report.pdf.
78Primer Hospital Popular Garifuna, ‘Our History’ (Primer Hospital Popular Garifuna)http://
primerhospitalgarifuna.blogspot.com/p/ingles.html.
79Institute of Medicine (2003), Saha et al. (1999).
80Werner et al. (1992).

Rights-Based Approaches to Infectious Disease 233
on hygiene and infectious diseases, globally accessible.81 In accordance with com-
munity level health delivery, Community Health Workers (CHWs) play an extremely
important role in the delivery of services82 and the response to infectious disease.83
Partners in Health (PIH), philosophically grounded in liberation theology, was an
early adopter of community participation in infectious disease prevention and con-
trol. PIH successfully promoted the participation of affected communities in the
early use of antiretroviral therapy in Haiti, resulting in improved compliance with
what were then more rigorous medicine regimens.84 Their success in this approach,
coupled with rights-based advocacy efforts, has resulted in a sea change in thinking
about the feasibility of antiretroviral therapy among populations in low-resource set-
tings. The COVID-19 response highlights the continuing importance of participation,
where adherence to social distancing, self-isolation, and shelter in place policies are
designed to “flatten the curve”; yet, without widespread community participation,
such critical policies are ineffective, if not meaningless.
2.4 The Right to Health
These rights-based approaches to infectious disease have been structured by the right
to health, framed by attributes that examine the availability, accessibility, acceptabil-
ity and quality (AAAQ) of health goods, facilities, and services. The UN Committee
on Economic, Social and Cultural Rights outlined these four interconnected and
essential attributes of the right to health,85 which have specific application to infec-
tious disease efforts, as highlighted by infectious disease prevention and response
during the 2014–2016 Ebola Virus Disease epidemic and the ongoing COVID-19
pandemic.
Under this AAAQ framework, availability pertains to the quantity of health goods,
facilities, and services available within a given country context; the concept includes
essential medicines as defined by WHO and the underlying determinants of health like
safe potable drinking water.86 When Ebola emerged in 2014 in West Africa, the three
affected countries (Guinea, Liberia, and Sierra Leone) were particularly vulnerable.
Colonized by three different colonial powers, the countries share a history of military
coups, dictatorship, civil war, and strife, which have resulted in the destruction of
virtually all health care infrastructures, widespread poverty, and a lack of trust in
81Godlee et al. (2004).
82Figueroa-Downing et al. (2016).
83De Oliveria Chiang et al. (2015).
84Koenig et al. (2004).
85UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).
86UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).

234 B. M. Meier et al.
public institutions.87 Ebola capitalised upon these institutional weaknesses to create
a perfect storm of public health, humanitarian, and human rights crises. The global
community belatedly rushed to build Ebola Treatment Units (ETUs), as nations
are seeking today to build hospitals to take in COVID-19 patients, but could offer
little in terms of treatment. As seen in the early COVID-19 response, the shortage of
surge capacity for face masks, ventilators, Personal Protective Equipment (PPE), and
other essential medical equipment underscores that the global community has not yet
learned the importance of public health preparedness. Key lessons from these public
health emergencies relative to availability include the importance of investment in
trained health professionals, facilities, and surveillance systems.88
Accessibility of health care and health care systems is operationalised in four
ways. Facilities must be geographically and physically accessible, services must be
affordable or economically accessible to users, care should be provided in a non-
discriminatory manner (with vulnerable and marginalised populations prioritised),
and both users and health personnel should be able to confidentially seek and receive
health information.89 Where health care facilities and personnel were extremely
limited in the West African context at the start of the Ebola epidemic, infected
people likely delayed seeking care due to poverty, and, later, ETUs were viewed as
‘death centres’. Beyond care, it has been necessary in both the Ebola and COVID-19
response to have access to water, sanitation, and hygiene. Even where physically
accessible, access to health information is critical to disease control, as seen where
the availability of chlorine water buckets for handwashing was useless in the Ebola
response without accompanying messaging about why and how to use them.90
Examining the acceptability of behaviour change relating to cultural practices—
from mundane handshakes to sacred burials91—these practices were socially impor-
tant and changing them was crucial to preventing Ebola transmission, as they will be
necessary to understand and change the course of transmission during the COVID-19
pandemic. The concept of acceptability encompasses the oft-debated human rights
notion of cultural relativism, requiring that health goods, facilities, and services are
culturally appropriate.92 In the case of Ebola in West Africa, nuanced approaches
to behaviour change were necessary to ensure the prevention of disease, including
engagement with religious and community leaders in the development of culturally
87Dabney P. Evans & Carlos del Rio, ‘Ebola Virus Disease: An Evolving Epidemic.’ (Coursera)
https://www.coursera.org/learn/ebola-virus.
88Crawford et al. (2016).
89UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).
90Dabney P. Evans & Carlos del Rio, ‘Ebola Virus Disease: An Evolving Epidemic.’ (Coursera)
https://www.coursera.org/learn/ebola-virus.
91del Rio et al. (2014).
92UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).

Rights-Based Approaches to Infectious Disease 235
acceptable alternatives to traditional practices.93 The concept of acceptability is also
closely aligned with traditional discussions of medical ethics.94 In accordance with
such ethical principles, the lack of a cure and limited knowledge about effective
Ebola treatment required that those treating cases in well-resourced settings rapidly
share information with those in West Africa.95
Quality requires that health facilities, goods, and services are scientifically and
medically appropriate.96 Assuring such quality pursuant to the right to health requires,
inter alia, unexpired drugs and equipment and appropriate training for health person-
nel. In the case of both Ebola and COVID-19, many early casualties of the disease
were care givers, including health personnel. With respect to protecting care givers,
the importance of correctly donning and doffing PPE is critical in slowing the spread
of disease among those in direct contact with infected individuals. The practice was
even successfully adopted by a nursing student who used garbage bags to protect
herself from Ebola infection while caring for sick family members; in the absence
of equipment in the COVID-19 response, seamstresses everywhere have coalesced
to sew needed face masks for medical personnel.97
This examination of efforts to address Ebola and COVID-19 through the AAAQ
lens provides useful insights into missed opportunities for the application of the right
to health to infectious disease control policy and future directions for public health
responses.
National governments are only beginning to apply health-related human rights in
addressing infectious disease—including the right to health, health-related human
rights, and cross-cutting rights-based principles of dignity, non-discrimination, and
participation—but despite the control of some infectious diseases, there is more that
must be done.98 Tuberculosis (TB) kills millions each year,99 yet lack of access to
treatment for key populations remains a challenge, worsened for those marginalised
by HIV co-infection or Multi Drug Resistant TB (MDR-TB). HIV/AIDS, now
in its fourth decade as a global pandemic, continues to disproportionately affect
impoverished populations, racial and ethnic minorities, the incarcerated, and sex-
ual minorities. Inadequate attention to vector-borne diseases like Zika have resulted
in devastating consequences for marginalized populations, including among poor
93Dabney P. Evans & Carlos del Rio, ‘Ebola Virus Disease: An Evolving Epidemic.’ (Coursera)
https://www.coursera.org/learn/ebola-virus.
94UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).
95Lyon et al. (2014); Dabney P. Evans & Carlos del Rio, ‘Ebola Virus Disease: An Evolving
Epidemic.’ (Coursera)https://www.coursera.org/learn/ebola-virus.
96UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No.
14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant)’ (UN Doc.
E/C.12/2000/4, 11 August 2000).
97Dabney P. Evans & Carlos del Rio, ‘Ebola Virus Disease: An Evolving Epidemic.’ (Coursera)
https://www.coursera.org/learn/ebola-virus.
98Barrett et al. (1998).
99World Health Organization (2016).

236 B. M. Meier et al.
Afro-Brazilian populations. COVID-19 has already descended the social gradient
to become a disease of the poor and marginalised, exposing the continuing weak-
nesses of national efforts to see individual rights as inextricably linked with public
health efforts. Despite the challenges posed by existing and emerging infectious
diseases, human rights-based approaches offer a framework for advancing national
disease control efforts. However, the continuing limitations of these national policies
highlight the need for rights-based global health governance.
3 Development of Rights-Based Global Health Governance
for Infectious Disease Prevention, Detection,
and Response
Globalisation has channelled the spread of disease, connected societies in shared vul-
nerability, and highlighted the risks posed by inadequate national policies.100 Yet i f
globalisation has presented challenges to infectious disease control, globalised insti-
tutions offer the promise of bridging national boundaries to alleviate these common
threats through global health governance for infectious disease prevention, detec-
tion, and response. Global collective action through international law is essential to
develop the rights-based governance structures for realizing global solidarity in deal-
ing with global infectious disease threats that are outside the control of individual
states.101
3.1 Infectious Disease Control Gives Birth to Global Health
Governance
Collective international governance for infectious disease control has evolved over
the past two centuries. Propelled by the steam of industrialisation, migration from
rural to urban areas, and cross-border travel and trade challenged nation-states in the
nineteenth century to cooperate in the prevention, detection, and control of infectious
diseases. As cholera spread throughout Europe in the early-to-mid nineteenth century,
individual states, still unaware of modern principles of epidemiology or microbiol-
ogy, responded by imposing burdensome restrictions on merchants and travellers,
including the quarantine of travellers, the disabling of ships, and the destruction of
cargo.
Given the constraints of these national restrictions on international commerce,102
international health law would seek to coordinate national public health responses
100Taylor (2004).
101Slaughter (1997).
102Howard-Jones (1975).

Rights-Based Approaches to Infectious Disease 237
to protect international economic and security interests against infectious disease
threats. In 1851, twelve nations met for the first of fourteen International Sanitary
Conferences, seeking to stem the spread of infectious disease across Europe without
unduly hindering commerce.103 While a lack of scientific understanding and interna-
tional consensus stymied international agreement during early conferences,104 evolv-
ing understanding of infectious disease epidemiology finally led to the development
in 1892 of a binding agreement: the International Sanitary Convention (ISC).105
Driven by national security and economic interests rather than a desire to protect the
public’s health—as either a public good or a human right106—states agreed under
the ISC to notify each other urgently of outbreaks of specific diseases within their
territories, and that the only goods subject to any restrictions would be clothes, bed
linen, and rags. There would be no land quarantine, but travellers with cholera or
cholera-like symptoms could be detained in isolation.107 Over the next thirty years,
nations adopted additional conventions under the ISC, and by 1926, international law
covered three main diseases: cholera, plague, and yellow fever.108 When WHO was
established in 1948 to facilitate post-war international health cooperation, oversight
and management of the ISC was incorporated into the Organisation’s mandate.109
Under the WHO Constitution, the World Health Assembly (WHA), the annual
meeting of WHO member states, would have authority to adopt sanitary, quarantine,
and other regulations designed to prevent the international spread of diseases.110
These international regulations would be automatically binding on all WHO member
states unless they expressly opt-out within a specified period.111 In 1951, the WHA
renamed the ISC the ‘International Sanitary Regulations’ and expanded their scope
to include smallpox, typhus, and relapsing fever. The WHA removed the latter two
diseases in 1969 and renamed these regulations the International Health Regulations
(IHR). In 1981, smallpox was also removed following its global eradication, returning
the IHR to the initial three diseases that sparked international health diplomacy:
cholera, plague, and yellow fever. Yet, as the world faced a continuous stream of
emerging and re-emerging diseases, the principal international law for preventing,
detecting, and responding to infectious disease outbreaks was increasingly seen as
inadequate.
103Ibid., 12. The participating nations in the first International Sanitary Conference were France,
Austria, the Two Sicilies, Spain, the Papal States, Great Britain, Greece, Portugal, Russia, Sardinia,
Tuscany, and Turkey.
104Ibid., 17–57, 65.
105Ibid., 65.
106Gostin and Katz (2016).
107Ibid., 70.
108Ibid.
109World Health Organization (1958).
110World Health Assembly, ‘Constitution of the World Health Organization’ (signed on 22 July
1946, entered into force 7 April 1948) art. 21(a).
111Ibid., art. 22.

238 B. M. Meier et al.
In addition to its under-inclusivity in addressing the expanding range of infectious
disease threats, the IHR also failed to incorporate individual human rights protections.
Under the 1969 IHR, states were expressly prohibited from requiring vaccinations
against plague upon entry and subjecting individuals to rectal swabbing to test for
cholera; however, neither prohibition of these bodily intrusions was couched as a
protection of human rights. This neglect of human rights is surprising given the
parallel development of UN human rights treaties during this period and the explicit
inclusion of the right to health in the 1948 WHO Constitution, placing human rights
at the centre of international health law.112 Despite calls for the revision of the IHR to
address these perceived weaknesses, it took the emergence of a previously unknown
infectious disease to prompt international action.
Severe acute respiratory syndrome (SARS) emerged in Guangdong, China in late
2002. Concerned that international travel and trade restrictions would be imposed to
control this infectious disease, thereby hampering national economic growth, China
did not inform the international community of this emerging disease—as SARS
was not one of the three diseases that states were specifically obligated to report
to WHO under the IHR.113 In February, 2003, SARS began to spread internation-
ally,114 prompting the Chinese government for the first time to report cases to WHO
and allow previously-obstructed WHO officials and epidemiologists into the coun-
try. China’s delays in accurately reporting the SARS outbreak—compounded by
prohibitions on local Chinese government officials from disclosing public health
outbreaks, deemed state secrets, until announced by the Ministry of Health in Bei-
jing115—drew widespread international condemnation, including from the WHO
Director-General.116 Only once the international community was formally aware of
the outbreak did Chinese officials begin to impose strict cordons sanitaires and quar-
antines, swiftly closing universities, villages, and apartment buildings and imposing
mass quarantines affecting more than 30,000 people in Beijing alone.117 China’s
judiciary thereafter issued an edict that existing laws criminalising the intentional
spread of disease applied to SARS, carrying a punishment from 10 years impris-
onment to execution.118 Yet these public health measures were criticised as being
applied arbitrarily and in a discriminatory manner119 and thus inconsistent with the
legitimate public health use of quarantines or isolation measures. While these state
112Pannenborg (1979).
113United States Congressional-Executive Commission on China (CECC) (2003).
114Huang (2004).
115Gill (2003).
116Fleck (2003).
117Huang (2004), Centers for Disease Control and Prevention (CDC) (2003).
118Eckholm (2003).
119‘US Criticised China over Death Penalty for SARS Quarantine Violations’ (Agence
France-Presse 16 May 2003) http://global.factiva.com/redir/default.aspx?P=sa&an=
afpr000020030516dz5g00mri&cat=a&ep=ASE.

Rights-Based Approaches to Infectious Disease 239
measures were consistent with international health law, they risked violating inter-
national human rights law, including protections of the right to life, right to health,
freedom of movement, and freedom of speech.120
With SARS highlighting the weaknesses of international law for infectious disease
control, the international community would commit not only to update the breadth,
scope, and notification obligations under the IHR, but also to address the absence of
human rights protections under international health law.
3.2 The Revised International Health Regulations (2005)
On 23 May 2005, the 58th WHA adopted the revised IHR, marking a significant shift
in the relationship between human rights and the prevention, detection, and response
to infectious disease under international law. Adopted under Articles 21 and 22 of
the WHO Constitution, the IHR became automatically binding on all WHO mem-
ber states and entered into force in July 2007. The purpose of the revised IHR is to
prevent, protect against, control, and respond to the international spread of infec-
tious disease through public health measures that avoid unnecessary interference
with international traffic and trade.121 Much like the International Sanitary Conven-
tions of the nineteenth century, merchants and travellers are the primary focus of
these provisions, which aim to respond to any Public Health Emergency of Inter-
national Concern (PHEIC), including the introduction and spread of a disease from
one country into another. Implemented by national governments, state sovereignty
continues to be a central tenet of the IHR, reflected in principles that provide states
the sovereign responsibility to develop health legislation to address a specific public
health risk. However, this domestic legislation ‘should uphold the purpose’ of the
IHR,122 reinforcing international commitments under both international health law
and international human rights law.
3.2.1 Domestic Implementation of Human Rights Through the IHR
Human rights are at the forefront of principles underpinning the IHR, requiring that
the domestic implementation of the IHR shall be guided by the UN Charter and the
WHO Constitution and ‘shall be with the full respect for the dignity, human rights
and fundamental freedoms of persons’.123 Reflecting this new rights-based focus,
the IHR’s general health measures (i.e., those not specific to travellers) reinforce
the centrality of human rights to the global governance of infectious disease. As a
cornerstone principle of human rights, any health measure taken by a country in
120Fidler (2003).
121World Health Organization, ‘International Health Regulations (2005)’ (2008) art. 2.
122Ibid., art. 4.
123Ibid., art. 3(1).

240 B. M. Meier et al.
accordance with the IHR must be applied in a transparent and non-discriminatory
manner.124 The IHR do not preclude countries from implementing health measures
within their territory in response to a PHEIC; however, such measures must be in
accordance with both national and international law. Thus, national measures must
achieve at least the same level of health protection as WHO recommendations and
must not be more restrictive of international traffic, or more invasive or intrusive to
individuals, than reasonably available alternatives.125
Crucially, the IHR provide that an imminent public health risk does not displace a
state’s non-derogable obligations under human rights law. These include respecting,
protecting, and fulfilling the right to life, freedom from torture, cruel, inhuman, or
degrading treatment, and freedom from non-consensual medical experimentation.
In addition to limits on the domestic health measures that a WHO member state
may take, the IHR additionally limit the nature of health measures governments
may take with respect to travellers, requiring that states treat travellers with respect
for their dignity, human rights, and fundamental freedoms as well as minimise any
discomfort or distress arising from the health measures taken.126 Protecting the rights
of travellers in the implementation of health measures, the IHR require that states
consider the gender, sociocultural, ethnic, or religious concerns of travellers.127
Yet states have not always complied with these human rights principles in the
implementation of the IHR. During the 2014–2016 Ebola epidemic, Liberia, Sierra
Leone, and Guinea implemented a triangular, regional cordon sanitaire where the
three national borders meet.128 This cross-border area already had a long history
of restrictive health responses, having faced prior colonial campaigns of cordoning
entire villages affected by infectious diseases.129 Responding to these Ebola restric-
tions, the WHO spokesperson stated that while WHO would not be against the use
of a cordon sanitaire, ‘human rights have to be respected’.130 Theeffectiveimple-
mentation of a cordon sanitaire invariably impacts the right to movement, yet during
an extraordinary public health event, it may be the least restrictive option based
upon scientific evidence and principles. However, if not implemented in accordance
with human rights, cordons sanitaires may additionally lead to the deprivation of
other health-related human rights, including the right to health, the right to food,
the right to water, and the non-derogable right to life.131 Compounding these rights
violations, the Liberian government additionally imposed an expansive quarantine
over the West Point area of Monrovia in August 2014, contradicting public health
recommendations and forcing at least 75,000 people to remain in overcrowded and
124Ibid., art. 42.
125Ibid., art. 43(2).
126Ibid., art. 32.
127Ibid., art. 32(b).
128McNeil Jr (2014).
129Commission on a Global Health Risk Framework for the Future (2016).
130McNeil Jr (2014).
131Zidar (2015).

Rights-Based Approaches to Infectious Disease 241
unsanitary conditions.132 After ten days of restrictions on access to food, water, and
other determinants of health—resulting in deadly clashes between residents and the
military—the government was forced to remove the quarantine order.133 Tested by
the 2014–2016 Ebola epidemic, the public health and human rights safeguards con-
tained in the IHR remained insufficient to prevent the use of unnecessary and IHR-
non-compliant domestic health measures, setting a precedent that would be vastly
expanded amidst the rights violations accompanying cordons sanitaires employed
by China in the early COVID-19 response.134
3.2.2 Human Rights Protections for Travellers
The IHR additionally establish normative standards for the health measures states
may take to mitigate the international spread of disease, including express consid-
eration of the human rights of travellers to protect individual dignity. Upon arrival
or departure, states may gather information on a traveller’s travel history or destina-
tion for the purpose of contact tracing (to assess possible exposure to an infectious
disease) or require a non-invasive medical examination (provided that it is the least
intrusive examination required to achieve the relevant public health aim).135 Such
non-invasive medical examinations can include visual examination of the ear, nose,
and mouth, temperature assessment using an ear, mouth, or skin thermometer or
thermal imaging, measurement of blood pressure, or the external collection of urine,
faeces, or saliva samples.136 If the initial examination shows a public health risk
exists, countries may, on a case-by-case basis, apply additional health measures on
the affected or suspected traveller; however, such measures must be the least intru-
sive and least invasive means to prevent the international spread of disease, must be
consistent with the IHR, and as a result, must avoid unnecessary infringements of
human rights.137 Respecting human dignity and bodily integrity, no medical exami-
nation (invasive or non-invasive), vaccination, prophylaxis, or other health measure
can be performed on travellers without their prior express informed consent or, for
individuals without capacity to give fully informed consent, parental or guardian
consent.138 However, if a traveller fails to consent to invasive medical examinations
or provide information necessary for contact tracing, the country may, where there
is an imminent public health risk, compel or advise the traveller to undergo the least
invasive and intrusive medical examination necessary, vaccination or prophylaxis,
or other health measures such as quarantine or isolation.139 For travellers that are
132Onishi (2014).
133Amon (2014a).
134Habibi et al. (2020).
135World Health Organization, ‘International Health Regulations (2005)’ (2008) art. 23.1(a).
136Ibid., art. 1.
137Ibid., art. 23(2).
138Ibid., art. 23(3).
139Ibid., art. 31(2).

242 B. M. Meier et al.
quarantined, isolated, or subjected to medical examination or other public health
procedures, countries must provide (in accordance with human rights obligations)
adequate food and water, accommodation, and clothing, protection of possessions,
medical treatment, and means of communication in a language the traveller can
understand.140
Facilitating accountability for these standards through WHO monitoring, a state
must notify WHO if it implements any additional health measure that significantly
interferes with international travel, such as refusing entry or prohibiting departure
of travellers for more than 24 hours, providing WHO with its public health rationale
and scientific basis for these travel restrictions.141 In response, WHO can request
that the state reconsider its measures; however, there is no formal IHR enforcement
mechanism or process if human rights are being violated or unduly burdened. Further
limiting accountability through WHO, this international monitoring mechanism is
not activated if state measures are domestically focused and do not have a significant
impact on international travel. Where countries engage in exclusively domestic health
measures that may violate human rights, the IHR remain silent, with states bound only
by independent international human rights obligations and any normative influence
found through the ‘temporary recommendations’ process during a PHEIC.
3.2.3 PHEICs and Temporary Recommendations
The revised IHR take an ‘all-hazards’ approach to PHEICs. No longer limited to spe-
cific infectious diseases, the obligations under the IHR apply to ‘any illness or medical
condition, irrespective of origin or source, that presents or could present significant
harm to humans’.142 Requiring states to notify WHO of any and all events that may
potentially constitute a PHEIC,143 the revised IHR were also updated to allow WHO
to receive information about possible events from a broad range of sources beyond
member states, such as through the media, civil society, and countries that are not
WHO member states.144 This new provision filled a critical gap in previous versions
of the IHR in cases where a government, as seen during SARS, fails to comply with
its notification obligation.145 Despite addressing this gap, the implementation of this
provision has been negated in practice, with scientists and civil society denied the use
of this right to share information, and the media, as seen in the COVID-19 outbreak,
facing imprisonment for reporting necessary public health information.146
140Ibid., art. 33(c).
141Ibid., art. 43(3).
142Ibid., art. 1.
143Ibid., art. 6.
144Ibid., art. 9.
145Baker and Fidler (2006).
146Davies (2017).

Rights-Based Approaches to Infectious Disease 243
Upon notification, the WHO Director-General, advised by an Expert Commit-
tee, independently declares whether such an event constitutes a PHEIC,147 and may
then issue temporary recommendations to WHO member states on the measures they
should, or should not, implement to address the public health threat.148 These recom-
mended measures may include how persons and goods are to be treated by countries,
including recommendations either for or against restrictions at points of entry (land
borders, airports, and ports), the use of quarantine or isolation, the requirements of
medical examinations, treatments, or vaccinations, contact tracing, access to medical
records, or travel and trade restrictions.
These WHO recommendations under the IHR are intended to guide IHR imple-
mentation with full respect for the dignity, human rights, and fundamental freedom
of persons. The protection of human rights is enshrined in the factors that the WHO
Director-General may consider in issuing, modifying, or terminating recommenda-
tions, which include health measures that (on the basis of a risk assessment) are not
more intrusive to persons than reasonably available alternatives.149 While these tem-
porary WHO recommendations are non-enforceable under international law, they
are intended to carry the normative weight of WHO authority in global health gov-
ernance, prescribe best practices in public health, and provide an informal basis for
accountability where countries do not follow them.
Yet, in spite of the authority of these WHO recommendations, countries around
the world have implemented health measures contrary to WHO recommendations
during the H1N1 influenza PHEIC, the 2014–2016 Ebola PHEIC, and the ongoing
COVID-19 PHEIC.150 For example, WHO’s temporary recommendations during the
Ebola PHEIC advised that there should be no restrictions on international travel or
trade—recommending against the banning of flights from affected countries or other
border restrictions—as such travel restrictions infringe upon the freedom of move-
ment and correspondingly limit life-saving humanitarian provisions and critically
needed medical professionals from reaching the affected countries. Despite this,
nearly 30 countries had imposed travel bans by November 2014, including Australia
and Canada, both high-income countries with developed public health systems.151
To assure greater compliance with future recommendations, WHO Director-General
Margaret Chan called in October 2015 for accountability mechanisms under the
IHR, including sanctions for countries that restrict international travel and trade.152
This was echoed in the report of the Ebola Interim Assessment Panel, tasked with
reviewing the IHR and WHO in response to the Ebola epidemic.153 However, other
independent reviews such as the Harvard-LSHTM Independent Panel on the Global
Response to Ebola concluded that economic incentives and the use of existing WHO
147World Health Organization, ‘International Health Regulations (2005)’ (2008) art. 12.
148Ibid., art. 15.
149Ibid., art. 7(d).
150World Health Organization (2009,2014).
151Taylor (2014).
152De Bode (2015).
153Ebola Interim Assessment Panel (2015).

244 B. M. Meier et al.
powers to publicly examine countries’ rationales for their health measures may
be more effective.154 Notwithstanding these universal recommendations to curtail
unnecessary travel restrictions, nations have largely disregarded these WHO recom-
mendations again in the COVID-19 response, with nationalist governments rapidly
enacting emergency travel bans that have divided the world and threatened global
governance while providing only marginal health benefits.155
The implementation of the IHR is intended to be carried out with full respect
for human rights and fundamental freedoms, and the laws, structures, and proce-
dures that countries employ to meet their IHR obligations must be compatible with
international human rights obligations. By extension, satisfactory implementation of
the IHR domestically should ensure that human rights are respected, protected, and
fulfilled—not only for travellers but for all residents. Where the Ebola epidemic and
COVID-19 pandemic have highlighted the practical limitations of the IHR temporary
recommendations, there remain accountability challenges in assuring rights-based
approaches to PHEICs.
3.3 Implementation of the IHR and the Global Health
Security Agenda
The limitations of IHR implementation over the past decade have forced countries to
develop new forms of global governance for infectious disease control. While states
are required to report to WHO on their progress in achieving a set of core capacities
deemed necessary for fulfilment of their IHR obligations to detect, report, and respond
to public health threats,156 only 22% of countries reported by their 2012 deadline
that they had met these capacity requirements.157 In an effort to independently assess
state progress in implementing the IHR, WHO in 2016 formally adopted a joint
external evaluation (JEE) tool that established an independent expert review process
to assess national progress against IHR core capacities, find gaps in implementation,
and identify best practices.158 Given the slow and inconsistent implementation of
the IHR, states additionally looked to develop new institutions of global governance
to prevent, detect, and respond to public health emergencies. A partnership of forty
countries and international organisations came together in February 2014 to launch
the Global Health Security Agenda (GHSA) to assist countries to develop and meet
their IHR capacities for ‘a world safe and secure from infectious disease threats’.
The GHSA is centred around three pillars of infectious disease: prevention (to pre-
emptively protect against threats), detection (to determine when a threat arises) and
154Moon et al. (2015).
155Meier et al. (2020).
156World Health Organization, ‘International Health Regulations (2005)’ (2008) art. 44.
157Kerry et al. (2014).
158World Health Organization (2018).

Rights-Based Approaches to Infectious Disease 245
response (to address threats as they are occurring).159 Under these pillars are eleven
‘action packages’, or areas of specific focus, to give effect to these pillars of preven-
tion, detection, and response. The action packages—including, inter alia, preventing
zoonotic diseases, ensuring biosafety and biosecurity, establishing real-time surveil-
lance and developing medical countermeasures—set out targets, measurements, and
specific action items for states to realise infectious disease control. National gov-
ernments under the GHSA are urged to build their capacities to support these action
packages, including through specific legislative and policy reforms.160
Despite the centrality of human rights to the revision of the IHR, and the opportu-
nity to use the IHR implementation process to incorporate human rights protections
into public health policies, the GHSA shifts away from an explicit consideration
of human rights. The right to health is implicitly realised through the work of the
GHSA, improving infectious disease surveillance and outbreak response capacities;
however, the GHSA does not incorporate the lessons that led to the inclusion of
human rights language in the revision of the IHR, such as the role of civil society,
scientists, and the media as surveillance sources.161 The realisation of human rights
is not expressly included at all in the text of the GHSA action packages. While the
action packages require participating countries to implement policy reforms, there
is no requirement that countries ensure that such reforms are consistent with human
rights obligations under international health law or international human rights law.
Many of the action packages will influence health-related human rights—on issues
of surveillance and privacy rights, bodily integrity and freedom of movement, and
interventions that may raise procedural rights issues—yet the GHSA includes no
safeguards that such activities are conducted in ways that respect, protect, or fulfill
human rights.
3.4 The Securitisation of Infectious Disease and Implications
for Human Rights
Given the absence of explicit human rights language and obligations, the GHSA
risks neglecting—or even undermining—the public health benefits of a rights-based
approach to infectious disease prevent, detection, and response. Rather than the
traditional public health paradigm, the GHSA is framed through a ‘securitisation’
approach to disease, which views threats to public health as existential threats to
national and international security, ‘requiring emergency measures and justifying
actions outside the normal bounds of political procedure’.162 Conceptually, the pro-
cess of securitising socio-economic issues is not inherently in conflict with human
rights. For example, the concept of ‘human security’ arose from human rights-based
159Centers for Disease Control and Prevention (CDC) (2014).
160Meier et al. (2017).
161Davies (2017).
162Buzan et al. (1998); as cited in Elbe (2006).

246 B. M. Meier et al.
approaches to development.163 WHO has described global health security as address-
ing ‘vulnerabilities to acute public health events’,164 and this description is consistent
with how international human rights law frames the right to health. However, global
health security is rarely presented in current policy discourse through the lens of
human rights.165 As seen in the modern history of infectious disease control—from
HIV to Ebola to COVID-19—governments have used public health emergencies to
rationalise limitations on, or in some cases derogations from, their obligations under
international human rights law. Framing certain infectious diseases as risks to secu-
rity can normalise what would otherwise be extraordinary measures, undermining
the justifications behind necessary limitations of human rights under international
law. Further, if an infectious disease arises that is deemed a threat to national or inter-
national security, there is a risk that primary decision-making authority can shift from
public health decision-makers to national security institutions.166 For example, dur-
ing the 2014–2016 Ebola outbreak in West Africa, the UN Security Council stepped
into the realm of global health through the adoption of Resolution 2177, which deter-
mined that the ‘unprecedented extent of the Ebola outbreak in Africa constitutes a
threat to international peace and security’.167 This resolution highlighted the poten-
tial for ‘forum shopping’ global health threats—from health governance to security
governance—leading to security-based policies that may conflict with health and
human rights goals, as seen in autocratic emergency responses to COVID-19 that
have drawn the scrutiny of the UN High Commissioner for Human Rights, public
health professional societies, and human rights non-governmental organizations.168
Rather than supporting infectious disease control efforts, such conflicts can under-
mine effective collaboration between domestic public health and national security
authorities responsible for the infectious disease response.169
The GHSA has demonstrated that the reframing of global public health as an
international security issue has the power to mobilize high-income countries to invest
financial and technical resources into capacity building for infectious disease preven-
tion, detection, and response in low-income countries. Through the JEE process, more
than sixty countries have undergone external evaluations of their IHR core capacity
compliance to highlight gaps in capacities and set priorities for full IHR implemen-
tation.170 However, such a securitization approach funded by high-income countries
163Amon (2014b), 293.
164World Health Organization (2007).
165Amon (2014b), 293.
166Buzan et al. (1998); as cited in Elbe (2006), 119, 127–28.
167United Nations Security Council, ‘Security Council resolution 2177 (2014) [on the outbreak of
the Ebola virus in, and its impact on, West Africa]’ 18 September 2014, S/RES/2177 (2014).
168Human Rights Watch. Human Rights Dimensions of COVID-19 Response (2020).
169Crawford et al. (2016).
170World Health Organization, ‘Join External Evaluation (JEE) mission reports’, available at: http://
www.who.int/ihr/procedures/mission-reports/en/.

Rights-Based Approaches to Infectious Disease 247
inherently prioritises threats to high-income countries.171 Neglected diseases or dis-
eases that do not pose a security threat to wealthy nations are unlikely to trigger the
financing and capacity building necessary for infectious disease governance, forc-
ing low-income countries to rely solely on traditionally underfunded humanitarian
approaches to some pressing infectious disease threats. The securitization approach
imparts obligations on low-income countries that prioritises surveillance of emerg-
ing or re-emerging infectious diseases, which may not reflect the immediate public
health priorities of that country.172 Despite this, the strengthening of public health
systems for emerging or re-emerging diseases is hoped to have flow-on effects that
benefit infectious diseases that do not fit within the securitisation paradigm. This
was demonstrated in the reverse (i.e., humanitarian investment advancing health
security) in Nigeria during the 2014–2016 Ebola epidemic, when polio surveillance
and response systems were able to transform quickly to detect cases and conduct
subsequent contact tracing, and now as Ebola surveillance and response systems are
being repurposed for COVID-19 control.173
With the GHSA distorting political priority-setting in infectious disease gover-
nance, the securitisation of infectious disease further risks undermining rights-based
approaches to health where emergency measures test the permissible limitations on
human rights to protect public health. Through a securitisation lens, what would oth-
erwise be an unauthorised limitation of a right may be legitimised in circumstances
where the legitimacy derives from emergency authorities. This risks removing infec-
tious disease control from ‘routine democratic considerations’174 in ministries of
health or departments of public health to less transparent parts of government under
police or military authorities. This securitisation of public health has been perva-
sive in the COVID-19 response. Inherent in the securitisation of public health is
the risk that national security concerns drive a country’s response to an infectious
disease in ways that harm both human rights and public health. It is imperative that
any risk that an infectious disease poses to the economic or political integrity of
the nation does not override parallel risks to human rights. This balance between
infectious disease control and human rights realisation in the context of a pandemic
was carefully examined in the drafting of the IHR; however, countries that have not
implemented human rights frameworks under law—whether constitutional, legisla-
tive, or regulatory—risk implementing infectious disease prevention, detection, and
response without these important rights-based safeguards.
The IHR brought human rights explicitly into the realm of global governance for
infectious diseases. While implementation of the IHR’s traditional public health core
competencies has been the focus of programmes to accelerate domestic implemen-
tation, greater attention must be paid to ensuring the implementation of the IHR’s
human rights provisions. To re-centre and reiterate human rights protections within
171Davies (2008), 295, 298–302.
172Ibid., 309.
173Va z e t a l . (2016).
174Elbe (2006), 119, 127.

248 B. M. Meier et al.
global health law, it will be necessary to continue to recognise the inextricable link-
ages between human rights and public health. As seen in the limited influence of
rights-violating efforts to contain and mitigate the COVID-19 pandemic, it remains
clear that the lack of respect for human rights in a global health security response can
hobble efforts to prevent, detect, and respond to infectious disease.175 Correspond-
ingly, the realisation of human rights principles—including non-discrimination, par-
ticipation, transparency, and accountability—remain critical for an effective public
health response that ensures the highest attainable standard of health.
4 Conclusion
Notwithstanding the robust development of international human rights frameworks
to codify health-related human rights, it remains uncertain whether human rights will
continue to influence infectious disease control. Assuring the continuing realisation
of human rights—even amidst this unprecedented COVID-19 pandemic response—
it will be necessary to assess whether infection control policies, programmes, and
practices pose the least threat of infringing on human rights while presenting the
greatest opportunity to realise health-related human rights. Human rights scholars
can provide this human rights impact assessment as a basis to monitor infectious
disease control actions in national health policy and global health governance. There
must be accountability for human rights in national policy and global governance,
codified through the adoption of: interpretive general comments on infectious disease
control from human rights treaty bodies; WHO human rights guidance for IHR
implementation that is assessed through the IHR Review Process; and revised human
rights derogation standards prepared by an independent body of experts, involving
civil society, global health lawyers, and other public health experts in the field.
Given that such human rights derogation and realisation must be assessed on a case-
by-case basis, global governance systems can provide necessary assessments of state
actions, recognizing the connections between national policy and global governance
and facilitating human rights accountability in preventing, detecting, and responding
to infectious disease through global health law.
References
Amon J (2014a) What turns a few cases of disease into thousands? Human Rights Watch. https://
www.hrw.org/news/2014/09/12/what-turns-few-cases-disease-thousands (12 Sept)
Amon JJ (2014b) Health security and/or human rights? In: Rushton S, Youde J (eds) Routledge
handbook of global health security. Routledge
Annas G, Grodin M (1992) The Nazi doctors and the Nuremberg code: human rights in human
experimentation. Oxford University Press, Oxford
175Amon (2014b), 293, 300.

Rights-Based Approaches to Infectious Disease 249
Baker MG, Fidler DP (2006) Global public health surveillance under new international health
regulations. Emerg Infect Dis 12(7):1058–1062
Barondess JA (1996) Medicine against society: lessons from the Third Reich. JAMA 276(20):1657–
1660
Barrett R, Kuzawa C, McDade T, Armelagos G (1998) Emerging and re-emerging infectious
diseases: the third epidemiologic transition. Annu Rev Anthropol 27:247–271
Bayer R (1991) Public health policy and the AIDS epidemic. An end to HIV exceptionalism? N
Engl J Med 324(21):1500–1504
Bayer R, Healton C (1989) Controlling AIDS in Cuba. N Engl J Med 320(15):1022–1024
Beaglehole R, Bonita R (1997) Public health at the crossroads: achievements and prospects.
Cambridge University Press, Cambridge
Brockington F (1968) World health, 2nd edn. Churchill Livingstone, Harcourt Brace, p 131
Buzan B, Wæver O, de Wilde J (1998) Security: a new framework for analysis. Lynne Rienner
Publishers, Boulder
Centers for Disease Control and Prevention (CDC) (2003) Efficiency of quarantine during an epi-
demic of severe acute respiratory syndrome—Beijing, China, 2003. MMWR Morb Mortal Wkly
Rep 52(43):1037
Centers for Disease Control and Prevention (CDC) (2014) Global health security agenda:
action packages. CDC. https://www.cdc.gov/globalhealth/healthprotection/ghs/pdf/ghsa-action-
packages_24-september-2014.pdf
Champion VL, Skinner CS (2008) The health belief model. In Glanz K, Rimer BK, Viswanath K
(eds) Health behavior and health education. Jossey-Bass, pp 45–65
Childress JF, Bernheim RG (2003) Beyond the liberal and communitarian impasse: a framework
and vision for public health. Fla Law Rev 55(5):1191–1193
Commission on a Global Health Risk Framework for the Future (2016) The neglected dimension
of global security: a framework to counter infectious disease crises. National Academies Press
Crawford R, Rutz D, Evans DP (2016) “Between Combat Boots and Birkenstocks”—lessons from
HIV/AIDS, SARS, H1N1 and Ebola. Public Health 141:186–191
Curran WJ, Clark ME, Gostin L (1987) AIDS: legal and policy implications of the application of
traditional disease control measures. J Law Med Ethics 15(1–2):27–35
Davies SE (2008) Securitizing infectious disease. Int Aff 84(2):295–313
Davies SE (2017) Infectious disease outbreak response: mind the rights gap. Med Law Rev
25(2):270–292
De Bode L (2015) WHO wants sanctions against countries for mishandling epidemic.
Al Jazeera America. http://america.aljazeera.com/articles/2015/10/22/health-sanctions-against-
countries-misguided.html (22 Oct)
De Oliveria Chiang ED, Baker ML, Figueroa-Downing D, Baggio ML, Villa LL, Neto JE, Hadley
C, Bednarczyk RA, Evans DP (2015) “Those who love, vaccinate”: parental perceptions of HPV
vaccination. J Hum Growth Dev 25(3):341–350
del Rio C, Mehta AK, Lyon M III, Guarner J (2014) Ebola hemorrhagic fever in 2014: the tale of
an evolving epidemic. Ann Intern Med 161:746–748
Donnelly J (1982) Human rights and human dignity: an analytic critique of non-Westernconceptions
of human rights. Am Polit Sci Rev 76(2):303–316
Donnelly J (2003) Universal human rights in theory and practice, 2nd edn. Cornell University Press,
London
Ebola Interim Assessment Panel (2015) Report of the Ebola Interim Assessment Panel. World
Health Organization, p 12. http://www.who.int/csr/resources/publications/ebola/report-by-panel.
pdf?ua=1 (7 July)
Eckholm E (2003) China threatens execution in intentional spreading of SARS. The New
York Times. https://www.nytimes.com/2003/05/15/international/asia/china-threatens-execution-
in-intentional-spreading-of.html (15 May)
Elbe S (2006) Should HIV/AIDS be securitized? The ethical dilemmas of linking HIV/AIDS and
security. Int Stud Q 50(1):119–144

250 B. M. Meier et al.
Fee E, Parry M (2008) Jonathan Mann, HIV/AIDS, and human rights. J Public Health Policy
29(1):54–71
Felner E (2009) Closing the “Escape Hatch”: a toolkit to monitor the progressive realisation of
economic, social, and cultural rights. J Hum Rights Pract 1:402–404
Fidler DP (2002) A globalized theory of public health law. J Law Med Ethics 30(2):150–156
Fidler D (2003) SARS and international law. ASIL Insights 8(7)
Figueroa-Downing D, Baggio ML, Baker ML, De Oliveria Chiang ED, Villa LL, Neto JE, Evans
DP, Bednarczyk RA (2016) Factors influencing HPV vaccine delivery by healthcare professionals
at public health posts in São Paulo, Brazil. Int J Gynecol Obstet 136(1):33–39
Fleck F (2003) How SARS changed the world in less than six months. Bull World Health Organ
81(8):625–626
Giliomee H, Mbenga B (2007) New history of South Africa, 1st edn. Tafelberg Publishers, Cape
Town
Gill B (2003) China and SARS: lessons, implications and future steps: presentation to
the Congressional-Executive Commission on China. CECC. http://www.cecc.gov/sites/
chinacommission.house.gov/files/documents/roundtables/2003/CECC%20Roundtable%
20Testimony%20-%20Bates%20Gill%20-%205.12.03.pdf
Godlee F, Pakenham-Walsh N, Ncayiyana D, Cohen B, Packer A (2004) Can we achieve health
information for all by 2015? Lancet 364(9430):295–300
Gostin LO (2001) Public health, ethics, and human rights: a tribute to the Late Jonathan Mann. J
Law Med Ethics 29(2):121–130
Gostin LO (2014) Global health law. Harvard University Press, Cambridge
Gostin LO, Katz R (2016) The International Health Regulations: the governing framework for
global health security. Milbank Q 94:264–266
Gostin L, Lazzarini Z (1997) Human rights and public health in the AIDS pandemic. Oxford
University Press, Oxford
Gostin L, Mann J (1994) Towards the development of a human rights impact assessment for the
formulation and evaluation of health policies. Health Hum Rights 1(1):58, 70–71
Gruskin S, Hendriks A, Tomasevski K (1996) Human rights and responses to HIV/AIDS. In: Mann
J, Tarantola D (eds) AIDS in the World II: global dimensions, social roots, and responses. Oxford
University Press, Oxford
Gruskin S, Mills EJ, Tarantola D (2007) History, principles, and practice of health and human rights.
Lancet 370(9585):449–455
Gust D, Darkling N, Kennedy A, Schwartz B (2008) Parents with doubts about vaccines: which
vaccines and reasons why. Pediatrics 122(4):718–725
Habibi R et al (2020) Do not violate the international health regulations during the COVID-19
Outbreak. Lancet 395(10225):664–666
Hoffman SZ (2004) HIV/AIDS in Cuba: a model for care or an ethical dilemma? Afr Health Sci
4(3):208–209
Holland S (2015) Public health ethics. Polity Press, Cambridge
Howard-Jones N (1975) The scientific background of the international sanitary conferences. World
Health Organization. http://apps.who.int/iris/bitstream/10665/62873/1/14549_eng.pdf
Huang Y (2004) The SARS epidemic and its aftermath in China: a political perspective. National
Academies Press, Washington, D.C.
Institute of Medicine (2003) Unequal treatment: confronting racial and ethnic disparities in health
care. The National Academies Press, Washington, D.C.
Kerry J, Sebelius K, Monaco L (2014) Why global health security is a national priority. CNN. http://
www.cnn.com/2014/02/12/opinion/kerry-sebelius-health-security/index.html (12 Feb)
King S (1999) Vaccination policies: individual rights v. community health. Br Med J 319(7223)
Kirby M (1988) The new AIDS virus—ineffective and unjust laws. J Acquir Immune Defic Syndr
1(3):304–305
Koenig S, Léandre F, Farmer PE (2004) Scaling-up HIV treatment programmes in resource-limited
settings: the rural Haiti experience. AIDS (Lond) 18:S21–S25

Rights-Based Approaches to Infectious Disease 251
Larson H, de Figueiredo A, Xiahong Z, Schulz W, Verger P, Johnston I, Cook A, Jones N (2016)
The state of vaccine confidence 2016: global insights through a 67-country survey. EBioMedicine
12:295–301
Lippman M (1992) The other Nuremberg: American prosecutions of Nazi war criminals in occupied
Germany. Indiana Int Comp Law Rev 3(1):1–22
Lippman M (1993) The Nazi doctors trial and the international prohibition on medical involvement
in torture. Loyola Los Angeles Int Comp Law J 15(2):395–406
Lyon M, Mehta A, Varkey JB, Brantly K, Plyler L, McElroy A, Kraft C et al (2014) Clinical care
of two patients with Ebola virus disease in the United States. N Engl J Med 371:2402–2409 (18
Dec)
Mahajan AP, Sayles J, Patel VA, Remien RH, Sawires SR, Ortiz DJ, Szekeres G, Coates TJ (2008)
Stigma in the HIV/AIDS epidemic: a review of the literature and recommendations for the way
forward. AIDS (Lond Engl) 22(Suppl 2):S67
Malinowski MJ (2003) Choosing the genetic makeup of children: our eugenics past, present, and
future? Conn Law Rev 36(1):125, 152–154
Mann J (1992) AIDS: the second decade: a global perspective. J Infect Dis 165(2):245–250
Mann J (1996) Health and human rights. Br Med J 312(7036)
Mann J (1999) Human rights and AIDS. In: Mann J, Gruskin S, Grodin M, Annas G (eds) Health
and human rights: a reader. Routledge, New York
Mann J, Tarantola D (1998) Responding to HIV/AIDS: a historical perspective. Health Hum Rights
2(4):5–8
Mann J, Gostin L, Gruskin S, Brennan T, Lazzarini Z, Fineberg H (1999) Health and human rights.
In: Mann J, Gruskin S, Grodin M, Annas G (eds) Health and human rights: a reader. Routledge,
New York
Marineli F, Tsoucalas G, Karamanou M, Androutsos G (2013) Mary Mallon (1869–1938) and the
history of typhoid fever. Ann Gastroenterol 26(2)
Mariner WK, Annas G, Glantz LH (2005) Jacobson v Massachusetts: it’s not your great-great-
grandfather’s public health law. Am J Public Health 95(4):581–590
Marks SP (2001) Jonathan Mann’s legacy to the 21st century: the human rights imperative for public
health. J Law Med Ethics 29(2):131–136
Marks S (2004) The human right to development: between rhetoric and reality. Harvard Hum Rights
J 17:137–138
McCarthy M (2015) Measles outbreak linked to Disney theme parks reaches five states and Mexico.
Br Med J 350
McDougal MS, Lasswell HD, Chen L (1980) Human rights and world public order: the basic
policies of an international law of human dignity. Yale University Press, p 29
McNeil DG Jr (2014) Using a tactic unseen in a century, countries cordon off Ebola-racked areas.
The New York Times. https://www.nytimes.com/2014/08/13/science/using-a-tactic-unseen-in-a-
century-countries-cordon-off-ebola-racked-areas.html?mcubz=1 (12 Aug)
Meier BM (2006) Employing health rights for global justice: the promise of public health in response
to the insalubrious ramifications of globalisation. Cornell Int Law J 39(3):711–778
Meier BM, Mori LM (2005) The highest attainable standard: advancing a collective human right
to public health. Columbia Hum Rights Law Rev 37(1):101–147
Meier BM, Pardue C, London L (2012) Implementing community participation through legislative
reform: a study of the policy framework for community participation in the Western Cape province
of South Africa. BMC Int Health Hum Rights 12(1):15
Meier BM, Tureski K, Bockh E, Carr D, Ayala A, Roberts A, Cloud L, Wilhelm N, Burris S (2017)
Examining national public health law to realize the global health security agenda. Med Law Rev
25(2):240–243
Meier BM, Habibi R, Yang YT (2020) Travel restrictions violate international law. Science 367:1436
Moon S, Sridhar D, Pate M, Jha A, Clinton C, Delaunay S, Edwin V et al (2015) Will Ebola change
the game? Ten essential reforms before the next pandemic. The report of the Harvard-LSHTM
Independent Panel on the Global Response to Ebola. Lancet 386(10009):2204–2221

252 B. M. Meier et al.
Moyn S (2010) The last utopia: human rights in history. Harvard University Press, Cambridge
Omer SB (2015) How to handle vaccine skeptics. New York Times. https://www.nytimes.com/
2015/02/06/opinion/how-to-handle-the-vaccine-skeptics.html?_r=0 (6 Feb)
Omer SB, Pan WKY, Halsey NA (2006) Nonmedical exemptions to school immunisation
requirements: secular trends and association off state policies with pertussis incidence. JAMA
296(14):1757–1763
Omer SB, Richards JL, Bednarczyk RA (2012) Vaccination policies and rates of exemption from
immunisation, 2005–2001. N Engl J Med 367:1170–1171
Onishi N (2014) Quarantine for Ebola lifted in Liberia slum. The New York Times. https://www.
nytimes.com/2014/08/30/world/africa/quarantine-for-ebola-lifted-in-liberia-slum.html (29 Aug)
Pannenborg CO (1979) A New International Health Order: An Inquiry into the International Rela-
tions of World Health and Medical Care. Sijthoff & Noordhoff, Alphen aan den Rijn, The
Netherlands
PBS Frontline (2006) Haiti, the high price of stigma. PBS Frontline: The Age of AIDS. http://www.
pbs.org/wgbh/pages/frontline/aids/countries/ht.html
Potts H (2008) Participation and the right to the highest attainable standard of health. University of
Essex
Preston J (2009) Obama lifts a ban on entry into U.S. by H.I.V.-positive people. New York Times.
http://www.nytimes.com/2009/10/31/us/politics/31travel.html (30 Oct)
Price PJ (2015) Ebola and the Law in the United States: a short guide to public health authority
and practical limits. Emory Legal Studies Research Paper No. 14-299. https://ssrn.com/abstract=
2538187
Raeburn J, Macfarlane S (2003) Putting the public into public health: towards a more people-centred
approach. In: Beaglehole R (ed) Global public health: a new era. Oxford University Press, pp
243–245
Reed G (2011) The human dimension of AIDS in Cuba: Jorge Perez MD, MS Director, Pedro Kourí
Tropical Medicine Institute. MEDICC Rev 13(2):14–19
Rhodes T, Singer M, Bourgois P, Friedman S, Strathdee S (2005) The social structural production
of HIV risk among injecting drug users. Soc Sci Med 61(5):1026–1044
Rose G, Navarro V, Krieger N, Zierler S (1999) Population perspective. In: Beauchamp DE,
Steinbock B (eds) New ethics for the public’s health. Oxford University Press, Oxford
Rosen G (1974) From medical police to social medicine: essays on the history of health care. Science
History Publications, New York
Roush S, Murphy T, The Vaccine-Preventable Disease Table Working Group (2007) Historical
comparisons of morbidity and morality for vaccine-preventable disease in the United States.
298(18):2155–2163
Ryle JA (1948) Changing disciplines: lectures on the history, method, and motives of social
pathology. Oxford University Press, Oxford
Saha S, Komaromy M, Koepsell TD, Bindman AB (1999) Patient-physician racial concordance and
the perceived quality and use of health care. Arch Intern Med 159(9):997–1004
Sand R (1934) L’Économie humaine par la médicine sociale. Rieder, Paris
Sidel VW (1996) The social responsibilities of health professionals: lessons from their role in Nazi
Germany. JAMA 276(20):1679
Slaughter A-M (1997) The real new world. Foreign Aff 76:183–184
Steiner HJ, Alston P, Goodman R (2008) International human rights in context: law, politics, morals,
3rd edn. Oxford University Press, Oxford
Taylor T (1992) Opening statement of the prosecution, December 9, 1946. In: Annas G, Grodin
M (1992) The Nazi doctors and the Nuremberg code: human rights in human experimentation.
Oxford University Press, Oxford
Taylor AL (2004) Governing the globalization of public health. J Law Med Ethics 32:500–501
Taylor A (2014) Why are Australia and Canada following North Korea’s lead on Ebola? Washing-
ton Post. https://www.washingtonpost.com/news/worldviews/wp/2014/11/06/why-are-australia-
and-canada-following-north-koreas-lead-on-ebola/?utm_term=.b1efeb356ecc (6 Nov)

Rights-Based Approaches to Infectious Disease 253
The Institute of Medicine (1988) The future of public health. The National Academies Press,
Washington, D.C.
United States Congressional-Executive Commission on China (CECC) (2003) Information con-
trol and self-censorship in the PRC and the spread of SARS. CECC. https://www.cecc.gov/
publications/issue-papers/information-control-and-self-censorship-in-the-prc-and-the-spread-
of-sars
VanderWal K (1990) Collective human rights: a Western view. In: Bertin J, Baeher P, Herman
Burgers J, Flinterman C, de Klerk B, Kroes R, van Minnen CA, VanderWal K (eds) Human rights
in a pluralist world: individuals and collectivities. Meckler, London
Vaz RG, Mkanda P, Banda R, Komkech W, Ekundare-Famiyesin OO, Onyibe R, Abidoye S et al
(2016) The role of the polio program infrastructure in response to Ebola virus disease outbreak
in Nigeria 2014. J Infect Dis 213(Suppl 3):S140–S146
Werner D, Thuman C, Maxwell J (1992) Where there is no doctor: a village health care handbook.
Hesperian Press
World Health Organization (1958) The first ten years of the World Health Organization. World
Health Organization, Geneva
World Health Organization (1988) AIDS prevention and control: invited presentations and papers
from the World Summit of Ministers of Health on Programmes for AIDS Prevention. World
Health Organization and Pergamon Press
World Health Organization (2007) The world health report 2007—a safer future: global public
health security in the 21st century. World Health Organization, Geneva
World Health Organization (2009) No rationale for travel restrictions. World Health Organization.
http://www.who.int/csr/disease/swineflu/guidance/public_health/travel_advice/en/ (1 May)
World Health Organization (2014) Statement on the 1st meeting of the IHR Emergency Committee
on the 2014 Ebola outbreak in West Africa. World Health Organization. http://www.who.int/
mediacentre/news/statements/2014/ebola-20140808/en/ (8 Aug)
World Health Organization (2016) Global tuberculosis report 2016. World Health Organization.
http://apps.who.int/iris/bitstream/10665/250441/1/9789241565394-eng.pdf?ua=1
World Health Organization (2018). IHR (2005) Monitoring and evaluation framework: Joint
External Evaluation tool (JEE tool) second edition. WHO, Geneva
Yang YT, Barraza L, Weidenaar K (2015) Measles outbreak as a catalyst for stricter vaccine
exemption legislation. JAMA 314(12):1229–1230
Zidar A (2015) WHO International Health Regulations and human rights: from allusions to
inclusion. Int J Hum Rights 19:505–526