Germs on a plane! Legal protections afforded to international air travelers and governments in the event of a suspected or actual contagious passenger and proposals to strengthen them.

• Author: Harrington, Alexandra R.

PART I--INTRODUCTION PART II--MEDICAL AND LEGAL BACKGROUND A. Infectious Diseases and Air Travl 1. Infectious Diseases of Documented Concern 2. Other Diseases to be Considered As a Threat in Air Travel B. Legal Background. 1. International Health Regulations 2. Regional Organizations 3. Applicable Diplomatic Protocols and Conventions PART III A. Background Information on the Tuberculosis Traveler Incident B. Implications and Suggestions PART IV A. Scenarios B. Implications and Suggestions PART V--CONCLUSION PART I--INTRODUCTION

In August 2006, American moviegoers watched as passengers on an airplane were terrified by poisonous snakes in the movie "Snakes on a Plane." (1) In May 2007, news watchers across the globe were riveted by the true story of an Atlanta lawyer who flew from the United States to several destinations in Europe while carrying a drug-resistant strain of tuberculosis. (2) This event prompted a public outcry against the actions of the "tuberculosis traveler," (3) who failed to heed the warnings of various local, state, and federal officials. However, the implications of the tuberculosis incident reverberated throughout the aviation, legal, and medical communities in a way in which fictional killer snakes cannot. While few travelers might like to ponder it, germs on a plane, and associated issues immediately after disembarking, are a more realistic, if less glamorous, threat to the flying public than a Hollywood created movie. Although travelers are offered some measure of protection from illness through the terms of the World Health Organization's International Health Regulations ("IHR") (4) and the actions of governments and air carriers, (5) the tuberculosis traveler incident illustrates that there are several areas where travelers are protected by neither law nor medicine.

This article examines two issues which were highlighted by the tuberculosis traveler incident and its aftermath: 1) the effectiveness of the current legal regimes in international law in stopping the health threat posed by individual carriers of communicable diseases who attempt to travel on an aircraft and 2) the legal standards--or lack thereof--applicable to international travelers when their course of travel is interrupted because they are deemed to constitute a threat to public health by the nation to which they are traveling or at an intermediate point during their travels. Part II of this article describes the various applicable international law regimes and provisions which govern air travel and the identification, handling, and procedures to be used in the event of a suspected or confirmed outbreak of infectious disease. (6) This Part also discusses the forms of infectious disease which concern public health experts. And, several of the infectious diseases which pose a prescient threat to air travelers, yet; are not contemplated in the international law regimes applicable to public health or air travel. (7)

Part III of this article discusses the issue of protecting travelers, and the global population at large, from infectious disease based threats posed by individual travelers who are carrying a disease at the time of their travels. (8) In this Part, the author advocates the creation of a public health-based do-not-fly list akin to the terror based do-not-fly list currently used by the American government to ensure that travelers who pose a threat to public health do not board aircraft or engage in air travel until their health status can be confirmed, or they are deemed to be no longer contagious to the general public. (9) It is the author's belief that Interpol's effective use of such a list to track criminals around the globe serves as a better model per se than the American do-not-fly list. When used properly, a public health-based list is cost effective, a better preservation of the rights of travelers, and poses fewer legal issues at home and abroad than does the current vacuum of legality and procedure in this particular area. (10)

Part IV of this article discusses the issue of travelers who have left their home country en route to another country and are denied entry or detained by the destination country--or a third party country through which the traveler is to connect--on the ground of suspicion of illness. (11) Initially, there seems not to be an issue under the terms of the IHR, which allows a state to deny entry to any traveler or to hold them for observation, testing, or quarantine on suspicion of illness. (12) However, those are the only rules set forth by the IHR. Issues such as how to safely transport a traveler, denied entry on the grounds of illness, and home are not addressed. (13) Further, the IHR regime does not address the rights or interests of State A when its citizen is detained in State B on suspicion of illness. (14) The pandemic preparedness plans used by governments make it clear that, while diplomatic and consular officials may attempt to guide State B in its handling of State A's citizens who are present in State B temporarily or permanently during a pandemic, State A has no right to dictate treatment or handling of its citizens. (15) In a situation where a citizen of State A is detained by State B on arrival for health reasons, there is little guidance for State A, State B, or the traveler as to State A's rights outside of standard diplomatic protocols. (16) This lack of guidance might seem intuitive, and even appropriate, at first glance because it allows for situational fluidity and is sensitive to the particular complexities of diplomatic relations generally. However, the importance of clarity for this issue crystallizes, when remembering the tuberculosis traveler who exposed his fellow travelers and airline crew members to a drug-resistant strain of tuberculosis, all because he was in diplomatic limbo over treatment and was concerned that the treatment he received in Italy would not be equal to that available in the United States, (17) In this Part, the author argues that simple amendments to the IHR regime and the Vienna Conventions on Diplomatic Relations of 1961, (18) and on Consular Relations of 1963 (19) would clarify these issues and spare future air travelers from uncertainty or unnecessary exposure to infectious disease. (20) These amendments would also reduce the chances of a diplomatic incident, especially in a situation where the threat of disease sparks an initial panic. (21)

Part V summarizes the issues and arguments made throughout this article. (22) It concludes that addressing the issues raised is an immediate necessity because (1) the frequency of international air travel, (2) the devastation which both global pandemics and regional outbreaks of infectious disease have, can, and will cause at a variety of levels, and the (3) difficulty of making an informed, well-reasoned, rational and diplomatically sound decision regarding any of the issues raised in the middle of a crisis, regardless of magnitude. In so doing, travelers will be able to experience dangers on an airplane at a movie theatre rather than in the skies.

PART II--MEDICAL AND LEGAL BACKGROUND

1. Infectious Diseases and Air Travel

   1. Infectious Diseases of Documented Concern

      Perhaps the most memorable incidence of infectious disease being transmitted through air travel occurred with the SARS outbreak in 2003. Originating with a Chinese doctor who treated patients with symptoms of the disease which would become known as SARS, the disease spread quickly after this doctor unknowingly boarded a plane while infected with SARS himself, rapidly infecting many of his fellow passengers. (23) The weeks which followed saw cities such as Hong Kong and Toronto temporarily suspend air travel in an attempt to isolate the cases of SARS located in their jurisdiction and to stop further spread of the disease. (24) While the threat posed by the 2003 SARS outbreak was contained and air travel as usual resumed within several months, SARS has by no means been eradicated as an infectious disease. (25)

      The majority of international public health and security focus and planning has centered on the threat of avian influenza and pandemic influenza. To date, there have been cases of bird to human transmission of the H1N1 strain of avian influenza. However the disease has not yet become capable of human to human transmission and remains a vector-borne (26) illness. (27) Since its appearance on an international scale, scientists, public health experts, and security analysts have focused on avian influenza as an emerging and likely pandemic threat should it reach the human to human transmission stage at some point in the future. (28) Governments across the world have created avian influenza strategies and awareness campaigns, while stressing that domestic planning cannot extend to citizens who travel to other states outside of standard diplomatic inquiry and suggestion allowances. (29) It is important to note that developed nations and international organizations have provided developing nations, especially those where avian influenza is already prevalent, with monetary, health care, and zoological support and infrastructural guidance in order to allow these nations to better monitor their avian and human populations for infection. (30) Despite these efforts, diagnosing avian and human infection with H1N1 is still a time consuming task, and often a final diagnosis is impossible until the bird or human has died or is symptomatically at the peak of infection. (31) Due to the emerging nature of this disease, it is difficult to pinpoint an incubation period for avian influenza in bird or human populations. (32)

      With the knowledge that devastating pandemic influenza epidemics in 1918 and 1969 would have been far deadlier if air travel had been as prevalent as it is now, the international public health community has become increasingly focused on the specter of the next outbreak of pandemic influenza. (33) On the...