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Ebola and the airplane – securing mobility through regime interactions and legal adaptation

  • Gearóid Ó Cuinn (a1) and Stephanie Switzer (a2)
Abstract

This article concentrates on a particular controversy during the 2014 Ebola outbreak in West Africa; the mass cancellation of flights to and from affected countries. This occurred despite authoritative advice against such restrictions from the World Health Organization (WHO). During a public health emergency such as Ebola, the airplane sits at a site of regulatory uncertainty as it falls within the scope of two specialist and overlapping domains of international law; the WHO International Health Regulations (2005) and the Convention on International Civil Aviation. We explore how legal technicalities and objects, by promoting functional interactions between these two specialized regimes of law, were utilized to deal with this uncertainty. We show how the form and function of these mundane tools had a significant impact; assimilating aviation further into the system of global health security as well as instrumentalizing the aircraft as a tool of disease surveillance. This encounter of regimes was law creating, resulting in new international protocols and standards designed to enable the resumption of flights in and out of countries affected by outbreaks. This article therefore offers significant and original insights into the hidden work performed by legal techniques and tools in dealing with regime overlap. Our findings contribute to the wider international law literature on fragmentation and enrich our understanding of the significance of relational regime interactions in international law.

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The authors would like to thank Professor Elizabeth Kirk, Professor Joseph McMahon, Professor Jane Scoular, Dr Padraig McAuliffe, Professor Barry Rodger, Professor Elisa Morgera and two anonymous reviewers for their invaluable support and comments on earlier drafts of this article. Any errors are the authors’ own.

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1 WHO, ‘Ground zero in Guinea: the Ebola outbreak smoulders – undetected – for more than 3 months’, available at www.who.int/csr/disease/ebola/ebola-6-months/guinea/en/.

2 UNICEF, ‘Impact of Ebola’, 21 July 2016, available at www.unicef.org/emergencies/ebola/75941_76129.html.

3 UNSC Resolution 2177 (2014), UN Doc. S/RES/2177 (2014), available at www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2177%20(2014).

4 World Health Assembly, Revision of the International Health Regulations, WHA58.3, 23 May 2005, (hereinafter IHR (2005)).

5 WHO, ‘Statement on the 1st Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa’, 8 August 2014, available at www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/.

6 Pursuant to IHR (2005), Art. 15.

7 IHR (2005), Art. 2.

8 WHO, supra note 5.

9 See discussion at Section 4, infra.

10 See N.J. Cohen et al., ‘Travel and Border Health Measures to Prevent the International Spread of Ebola’, CDC, 8 July 2016, available at www.cdc.gov/mmwr/volumes/65/su/su6503a9.htm.

11 See generally T. Nierle and B. Jochum, ‘Ebola and Marburg: The Failures of the International Outbreak Response’, Médecins Sans Frontières, 27 August 2014, available at www.msf.org/article/ebola-failures-international-outbreak-response.

12 WHO, ‘Statement on the 9th meeting of the IHR Emergency Committee regarding the Ebola outbreak in West Africa’, 29 March 2016, available at www.who.int/mediacentre/news/statements/2016/end-of-ebola-pheic/en/.

13 See generally B. Vickers and D. Games, ‘The Ebola Crisis: Implications for trade and regional integration’, ICTSD, 6 May 2015, available at www.ictsd.org/bridges-news/bridges-africa/news/the-ebola-crisis-implications-for-trade-and-regional-integration.

14 1994 Convention on Civil Aviation, 15 UNTS 295 (hereinafter Chicago Convention).

15 See, for example, L.O. Gostin, ‘Ebola: towards an International Health Systems Fund’ (2014), available at scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2383&context=facpub.

16 For discussion see Dunoff, J.L., ‘A New Approach to Regime Interaction’, in Young, M.A. (ed.), Regime Interaction in International Law (2012), 136.

18 Ibid., at 138.

19 See generally Riles, A., ‘A New Agenda for the Cultural Study of Law: Taking on the Technicalities’, (2005) 53 Buffalo Law Review 973.

20 Valverde, M., ‘Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for Theory’, (2009) 18(2) Social and Legal Studies 139.

21 Cloatre, E., ‘Shifting labels and the fluidity of the “legal”’, in Cowan, D. and Wincott, D. (eds.), Exploring the legal in socio-legal studies (2015), 97.

22 See Valverde, supra note 20, at 153.

23 Drawing on the concept of socio-legal objects see Cloatre, E., ‘Trips and pharmaceutical patents in Djibouti: an ANT analysis of socio-legal objects’, (2008) 17(2) Social & Legal Studies 263.

24 See generally Valverde, supra note 20.

25 See generally ILC Analytical Study 2006, ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 and Add.1 and Corr. 1. New York: International Law Commission, 2006.

26 See D. Fidler, SARS: Governance and the Globalisation of Disease (2004), Ch. 5. For further details on the role of international air travel in the spread of SARS see WHO, The World Health Report 2007 - A Safer Future: Global Public Health Security in the 21st Century (2007), at 38.

27 ‘Air travel “fuelled Sars spread”’, BBC NEWS, 17 December 2003, available at news.bbc.co.uk/2/hi/asia-pacific/3329483.stm. See also ibid.

28 See generally Kesby, A., ‘The Shifting and Multiple Border and International Law’, (2007) 27(1) Oxford Journal of Legal Studies 101.

29 See supra, notes 26 and 27.

31 S.E. Davies, A. Kamradt-Scott and S. Rushton, Disease Diplomacy: International Norms and Global Health Security (2015), Ch. 2.

32 Fidler, D., ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’, (2005) 4(2) Chinese Journal of International Law 325, at 343.

33 It should be noted, however, that the ICAO and WHO had previously worked together on a diverse range of issues including quarantine, disinsectization of aircraft to eradicate vectors of disease, as well as airport health and sanitary facilities. Indeed, the IHR (1969), applicable at the time of SARS, contained a large number of references to aviation and international travel. The public health risks of international air travel were also given specific expression in Art. 14 of the Chicago Convention. The extent of collaboration between the ICAO and WHO was such that the ICAO was the only intergovernmental organization to participate in a 1995 informal WHO consultation on revision of the latter’s International Health Regulations. Despite such co-operation, however, in the period before SARS, only limited progress was made in terms of regulating the interior of the aircraft to prevent the spread of communicable disease. See generally Budd, L.C.S., Bell, M. and Brown, T., ‘Of Plagues, planes and politics: controlling the global spread of infectious diseases by air’, (2009) 28(7) Political Geography 426, at 429; Plotkin, B.J. and Kimbal, A.M., ‘Designing an International Policy and Legal Framework for the Control of Emerging Infectious Diseases: First Steps’, (1997) 3(1) Emerging Infectious Disease 1; Abeyratne, R., ‘International Responsibility in Preventing the Spread of Communicable Diseases Through Air Carriage – The SARS Crisis’, (2003) 30 Transportation Law Journal 53.

34 The ICAO is a UN specialized agency, established by states in 1944 to manage the administration and governance of the Convention on International Civil Aviation (Chicago Convention). The quote is taken from the preamble to ICAO 2004 Resolution A35-12: Protection of the health of passengers and crews and prevention of the spread of communicable disease through international travel. On the economic impact of SARS for the airline industry see R. Abeyratne, Convention on International Civil Aviation: A Commentary (2013), 218–19.

35 ICAO, ibid.

36 Review and Approval of Proposed Amendments to the International Health Regulations: Relations with Other International Instruments, WHO Doc. A/IHR/IGWG/INF.DOC./1, 30 September 2004, 1–10.

37 Supra, note 33.

38 See WHO, ‘Report of the Ebola Interim Assessment Panel - final report’ (2015), available at www.who.int/csr/resources/publications/ebola/ebola-panel-report/en/, at 5: ‘The International Health Regulations were revised a decade ago in order to better protect global health security – specifically, with the aim to prevent, protect against, control and respond to the international spread of disease while avoiding unnecessary interference with international traffic and trade.’

39 Surveillance is defined in the IHR (2005), Art. 1.1, as ‘the systematic ongoing collection, collation and analysis of data for public health purposes and the timely dissemination of public health information for assessment and public health response as necessary’. For a critique of the surveillance function of the IHR see generally Blouin Genest, G., ‘World Health Organization and disease surveillance: Jeopardizing global public health?’, (2015) 19(6) Health 595.

40 See Barker, K., ‘Biosecurity: securing circulations from the microbe to the macrocosm’, (2015) 181(4) The Geographical Journal 357, at 358.

41 Lakoff, A., ‘Two regimes of Global Health’, (2010) 1(1) Humanity 59, at 72.

42 Ingram, A., ‘Biosecurity and the international response to HIV/AIDS’, (2010) 42(3) Area 293, at 296. See also Warren, A., Bell, M. and Budd, L., ‘Using event-based surveillance to manage emerging infectious disease’, in Ball, K. and Snider, L. (eds.), The Surveillance-Industrial Complex: A Political Economy of Surveillance (2013), 47.

43 Stephenson, N., ‘Emerging Infectious Disease/Emerging forms of Biological Sovereignty’, (2011) 36 Science, Technology and Human Values 616, at 621.

44 S.J. Collier and A. Lakoff, ‘Vital Systems security’, ARC Working Paper No. 2, 2 February 2006; cited in Stephenson, ibid., at 621–2. See also Opitz, S., ‘Regulating the Epidemic Space: the nomos of global circulation’, (2015) 19(2) Journal of International Relations and Development 1, at 10, who argues that, ‘the IHR contain no substantial allusion to individual health, the figure of the individual person who is sick and needs care is, for the most part, absent. On the other hand, and even more curiously, the IHR also refrain from concerning themselves with the health of the population…’

45 The preamble to the Chicago Convention states that governments have agreed on ‘principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner and that the international air transport services may be established on a basis of equality of opportunity’. See generally Abeyratne, supra note 34, at 217, commenting that in respect of the aviation context, ‘international responsibility in the carriage of persons extends only as far as the obligation to prevent injury, wounding or death, and not to the physical or mental well-being of a person’.

46 See generally International Civil Aviation Organization, Resolution A33-12: Harmonization of drug and alcohol testing programmes (2001).

47 International Civil Aviation Organization, Resolution A29-15: Smoking restrictions on international passenger flights (8 October 1992).

48 On this issue it is clear that, while ‘treaty overlap indicates an engaged global community, it also creates problems of inefficiency, contradiction, lost opportunities, and sometimes even “sclerosis”’. S. Jinnah, Post-Treaty Politics: Secretariat Influence in Global Environmental Governance (2014), 5.

49 See, for example, A. Evans, ‘Update on CAPSCA (Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation)’, 2013, available at www.icao.int/MID/Documents/2013/capsca-mid3/Update%20on%20CAPSCA.pdf, at 6.

50 See, for example, Dunoff, J., ‘The WTO in Transition: Of Constituents, Competence and Coherence’ (2001) 33 George Washington International Law Review 979; Lowe, V., ‘The Role of Law in International Politics’, in Byers, M. (ed.), The Politics of Law-Making: Are the Method and Character of Norm Creation Changing? (2000).

51 See, for example, Abi-Saab, G., ‘Fragmentation or Unification: Some Concluding Remarks’, (1999) 31 New York University Journal of International Law and Politics 919.

52 See generally ILC Analytical Study, supra note 25.

53 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 31 (3)(c).

54 See generally N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2012), Ch. 8.

55 Dunoff, supra note 16, at 138.

56 Borgen, C.J., ‘Resolving treaty conflicts’, (2005) 37 George Washington International Law Review 573, at 605.

57 ILC Study, supra note 25, para. 488.

58 F. Johns, Non-Legality in International Law Unruly Law (2013), 221.

59 Peters, A., ‘The refinement of international law: From fragmentation to regime interaction and politicization’, (2017) 15(3) International Journal of Constitutional Law 671, at 672. See generally M.A. Young (ed.), Regime Interaction in International Law (2012).

60 See, for example, van Asselt, H., ‘Managing the Fragmentation of International Environmental Law: Forests at the Intersection of the Climate and Biodiversity Regimes’, (2012) 44(4) New York University Journal of International Law and Politics 1205. ‘Relational regime interactions’ derives from Dunoff, supra note 16, at 138.

61 van Asselt, ibid.

62 Fischer-Lescano, A. and Teubner, G., ‘The Vain Search for Legal Unity in the Fragmentation of Global Law’, (2004) 25 Michigan Journal of International Law 999, at 1007.

63 de Sousa Santos, B., ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, (1987) 14(3) Journal of Law and Society 279, at 298.

64 Valverde, supra note 20, at 144.

65 See Burchardt, D., ‘Intertwinement of Legal Spaces in the Transnational Legal Sphere’, (2017) 30(2) Leiden Journal of International Law 305. See generally Trachtman, J.P., ‘Institutional Linkage: Transcending “Trade and”’, (2002) 96 American Journal of International Law 77, at 80, to the effect that, linkage between two regimes is effectively a ‘problem of jurisdiction’.

66 Valverde, supra note 20, at 145.

67 Ibid., at 153.

68 See generally Riles, supra note 19, at 975.

69 A. Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (2011), Ch. 1.

70 Ibid., 69.

71 A. Riles, ‘Afterword: A Method More Than a Subject?’, in Cowan and Wincott supra, note 21, at 259.

72 See Riles, supra note 19, at 976.

73 See generally Riles, A., ‘Models and Documents: Artifacts of International Legal Knowledge’, (1999) 48(4) International and Comparative Law Quarterly 805.

74 See Riles, supra note 19, at 985.

75 Cloatre, supra note 23, at 263.

76 Savino, M., ‘Linkages between global regimes and interactions with civil society’, in Cassesse, S. (ed.), Research Handbook on Global Administrative Law (2016), Ch. 6.

77 L. Casini, ‘The Expansion of the material scope of global law’, in Cassesse, ibid., at 34.

78 See Savino, supra note 76, at 138–40; see also ibid., Ch. 1.

79 This term is used by Dunoff, supra note 16.

80 Ibid. See also Dunoff, J.L., ‘How to avoid regime collisions’, in Blome, et al., (eds.), Contested Regime Collisions: Norm Fragmentation in World Society (2016), 49 at 58.

81 See discussion at Section 5, infra.

82 Casini, supra note 77, Ch. 1.

83 See generally Savino, supra note 76, Ch. 6.

84 Pursuant to ICAO, supra note 34, the ICAO Council requested that action be taken to, ‘Review existing SARPs related to passenger and crew health and develop new SARPs where appropriate with due consideration of global health issues and recent developments in air transport operations.’ All contracting states should be urged ‘to ensure the implementation of existing SARPs related to the health of passengers and crews.’ Pandemic influenza would also play a part in the expansion of the ICAO’s role in mitigating the risk of infectious disease spread via air travel; see generally ICAO, ‘The Postal History of the ICAO – ICAO and the World Health Organization’, available at www.icao.int/secretariat/PostalHistory/icao_and_the_world_health_organization.htm.

85 Pursuant to Art. 37 of the Chicago Convention, the ICAO may adopt these measures for dealing with a range of issues including safety, regularity, and efficiency. These are known as SARPS and are found in the Annexes to the Chicago Convention.

86 See, for example, Chicago Convention, Ann. 9 Facilitation, Ch. 2.

87 Chicago Convention, Ann. 6 Operation of Aircraft; Ann. 9 Facilitation; Ann. 11 Air Traffic Services; Ann. 14 Aerodromes; Ann. 18 The Safe Transport of Dangerous Goods by Air.

88 Indeed, revisions to the General Declaration Form were forwarded by the ICAO to the WHO with the latter considering the, ‘document as part of its revision of the International Health Regulations’; see ICAO ‘Working Paper – Assembly – 36th Session Executive Committee – Agenda Item 18: Passenger and crew health and the prevention of spread of communicable disease – Passenger and Crew Health and the Prevention of the Spread of Communicable Disease’, 5 July 2007, A36-WP/22; EX/2, available at www.icao.int/Meetings/AMC/MA/Assembly%2036th%20Session/wp022_en.pdf, at para. 2.1.3.1.

89 For example, Art. 23 (4)(h) of the 1992 Convention on Biological Diversity, 1760 UNTS 79, which charged the Convention of Parties with ‘contact[ing], through the Secretariat, the executive bodies of Conventions dealing with matters covered by this Convention with a view to establishing appropriate forms of cooperation with them’.

90 Leebron, D., ‘Linkages,’ (2002) 96(1) The American Journal of International Law 5; H van Asselt, supra note 60.

91 ICAO, supra note 88, at para. 2.1.3.2.

92 Ibid., para. 2.1.3.4.

93 CAPSCA, ‘Introduction’, available at www.capsca.org/IntroandObjectivesWeb.pdf.

94 See A. Jordaan, ‘CAPSCA Future Developments’, 3 October 2016, available at www.capsca.org/Meetings/Americas2016/D3-P5.pdf, at 10.

95 On overlap management more generally in international law see Jinnah, supra note 48.

96 IATA, ‘Suspected Communicable Disease – Guidelines for Cabin Crew’ (December 2017), available at www.iata.org/whatwedo/safety/health/Documents/health-guidelines-cabin-crew.pdf, at para. 14.

97 In this vein see Dunoff, supra note 16, at 138.

98 Chicago Convention, Ann. 9, Appendix 13; Amendment 20 to Ann. 9 – Facilitation; for background on its introduction see www.icao.int/Meetings/AMC/MA/Assembly%2036th%20Session/wp022_en.pdf.

99 Ibid., Ann. 6.

100 Ibid., Ann. 9 which states: ‘It is suggested that States make available adequate stocks of the Passenger Locator Form, for use at their international airports and for distribution to aircraft operators, for completion by passengers and crew.’

102 Chicago Convention, Ann. 6, Ch. 6.2.2.

103 Ibid., Ann. 6, Ch. 6.2.2; Attachment B, 2.2.

104 Ibid., Ann. 9.

105 See generally Lakoff, A., ‘Real-time biopolitics: The actuary and the sentinel in global public health’, (2015) 44(1) Economy and Society 40, at 41.

106 The IATA has been active in this domain since 2005; see Dowdall, N.P., Evans, A.D. and Thibeault, C., ‘Air Travel and TB: An Airline Perspective’, (2010) 8(2) Travel Medicine and Infectious Disease 96, at 100, and has updated its guidance periodically; see International Air Transport Association (IATA), ‘Suspected Communicable Disease-Health Guidelines for Cabin Crew’ (2011), available at web.archive.org/web/20130517130342/http://www.iata.org/whatwedo/safety/health/Documents/health-guidelines-cabin-crew-2011.pdf and most recent guidance available here; IATA, supra note 96.

107 E.g., ‘Store soiled items (used tissues, face masks, oxygen mask and tubing, linen, pillows, blankets, seat pocket items, etc.) in a biohazard bag.’

108 IHR (2005), Art. 28.6.

109 IATA, ‘Suspected Communicable Disease – Guidelines for Cabin Crew (December 2015), available at www.iata.org/whatwedo/safety/health/Documents/health-guidelines-cabin-crew.pdf.

110 WHO, ‘Tuberculosis and Air Travel: Guidelines for Prevention and Control: Cabin Air Quality’ (2008), available at www.ncbi.nlm.nih.gov/books/NBK143720/.

111 See ECDC, ‘Risk Assessment Guidelines for Diseases Transmitted on Aircraft’ (2009), available at ecdc.europa.eu/sites/portal/files/media/en/publications/Publications/1012_GUI_RAGIDA_2.pdf.

112 IATA, ‘IATA Guidance Note on Ebola’ (August 2015), available at web.archive.org/web/20150905222421/https://www.iata.org/whatwedo/safety/health/Documents/ebola-comm-0815.pdf.

113 AIRSAN, ‘Contact Tracing – Collaboration between the Public Health and the Aviation Sector’ (May 2015), available at at www.airsan.eu/Portals/0/docs/AIRSAN_Guidance%20Document_Contact%20Tracing_May2015.pdf, at 11.

114 Riles, supra note 19, at 986.

115 See generally Stephenson, supra note 43, at 627–8.

116 Ibid., at 630.

117 See generally Valverde, supra note 20, at 141.

118 Of practical import is that, in July 2014, the ICAO questioned why the WHO had not declared a PHEIC; ‘Concern was expressed that WHO has not yet established an Ebola IHR Emergency Committee and that it has not been designated a Public Health Emergency of International Concern ...’; CAPSCA, ‘Report on the Fifth Regional Meeting of the Collaborative Arrangement for the Prevention of Public Health Events in Civil Aviation (CAPSCA - Africa)’ (2014), para. 4.

119 Indeed, ‘Contracting States shall comply with the pertinent provisions of the current edition of the International Health Regulations of the World Health Organization’; Chicago Convention, Ann. 9, Provision 8.12.

120 Jordaan, supra, note 94.

121 B. Latour, Pandora’s Hope (1999), 193.

122 WHO, ‘Statement of the 3rd Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa’, 26 October 2014, available at www.who.int/mediacentre/news/statements/2014/ebola-3rd-ihr-meeting/en/.

123 M. Anderson, ‘Ebola: Airlines cancel more flights to affected countries’, The Guardian, 22 August 2014, at 5; see also Amankwah-Amoah, J., ‘Ebola and Global Airline Business: An Integrated Framework of Companies; Responses to Adverse Environmental Shock’, (2016) 58(5) Thunderbird International Business Review 385, at 391.

124 WHO, ‘Statement of the 2nd Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa’, 22 September 2014, available at www.who.int/mediacentre/news/statements/2014/ebola-2nd-ihr-meeting/en/.

125 WHO, ‘Statement of the 4th Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West Africa’, 21 January 2015, available at www.who.int/mediacentre/news/statements/2015/ebola-4th-ihr-meeting/en/.

126 WHO, ‘Statement of the 3rd Meeting of the IHR Emergency Committee’, supra note 122.

127 ITV, ‘BA suspends Sierra Leone and Liberia flights over Ebola’, 5 August 2014, available at www.itv.com/news/update/2014-08-05/ba-suspends-sierre-leone-and-liberia-flights-over-ebola/.

128 S. Phillips, MP (Sleaford and North Hykeham) (Con), 5 November 2014, Col 940, Hansard, available at www.publications.parliament.uk/pa/cm201415/cmhansrd/cm141105/debtext/141105-0004.htm.

129 M. Leftly, ‘We owe it to Sierra Leone, and ourselves, to re-establish links’, Independent, 25 February 2015, available at www.independent.co.uk/news/business/comment/mark-leftly-we-owe-it-to-sierra-leone-and-ourselves-to-re-establish-links-10068356.html.

130 ‘Air France staff refuse to fly to west Africa amid fears of Ebola outbreak’, RTE News, 20 August 2014, available at www.rte.ie/news/2014/0820/638337-air-france/.

131 H. Martin, ‘Emirates Airlines suspends flights to Guinea after Ebola outbreak’, Los Angeles Times, 4 August 2014, available at www.latimes.com/business/la-fi-emirates-flights-ebola-20140804-story.html.

132 Association of Flight Attendants, ‘Flight Attendant Union Issues Ebola Protection and Response Checklist’, available at www.afacwa.org/flight_attendant_union_issues_ebola_protection_and_response_checklist.

133 See generally Amankwah-Amoah, supra note 123.

134 EU/WHO, ‘Mission to Review the Exit Screening Measures at International Airports in Conakry, Freetown and Monrovia Summary Technical Report’, available at hygimia69.blogspot.com/2014/12/eu-who-mission-to-review-exit-screening.html.

135 B. Kennedy, ‘British Airways Suspends some flights due to Ebola Concerns’, CBC News, 5 August 2014, available at www.cbsnews.com/news/british-airways-suspends-some-flights-due-to-ebola-concerns/.

136 ICAO/WHO, ‘Ebola Virus Disease Outbreak – Aviation Action Plan’, October 2014, available at www.capsca.org/Documentation/Ebola/WHO-ICAOActionPlanEN.pdf.

137 ICAO, ‘ICAO and World Health Organization Collaboration on Ebola’, 30 July 2014, available at www.icao.int/Newsroom/Pages/ICAO-and-World-Health-Organization-collaboration-on-Ebola-outbreak.aspx.

138 WHO, supra note 5.

139 WHO, ‘WHO Interim Guidance for Ebola Event Management at Points of Entry’, September 2014, available at www.euro.who.int/__data/assets/pdf_file/0007/268792/WHO-Interim-Guidance-for-Ebola-Event-Management-at-Points-of-Entry-Eng.pdf, at 7.

140 CAPSCA, ‘List of Conclusions of the 5th CAPSCA Global Coordination Meeting (Cairo, Egypt, 17 - 20 November 2014)’ (2014), available at www.icao.int/MID/Documents/2014/CAPSCA%20MID4/CAPSCAconclusionsRev5AE.pdf, at 2.

141 ‘Traveller Public Health Declaration’, available at www.capsca.org/Documentation/Ebola/TravelerHealthDeclarationForm21Oct2014.pdf.

142 Indeed, in the context of the 2014 EVD outbreak, it was noted by the WHO that the General Declaration of aircraft health form could be requested of all arriving aircraft ‘arriving from EVD-affected areas and for aircraft carrying ill travellers suspected of having EVD’ meaning the pilot would have to notify Air Traffic Control about any suspected cases of communicable disease on-board before arrival; see WHO, ‘Technical note for Ebola virus disease preparedness planning for entry screening at airports, ports and land crossings’ (December 2014), available at apps.who.int/iris/bitstream/10665/144819/1/WHO_EVD_Guidance_PoE_14.3_eng.pdf, para 3.1.

143 IATA, ‘Suspected Communicable Disease – Script to be Read by Cabin Crew to Passengers Prior to Arrival’ (October 2014), available at www.iata.org/whatwedo/safety/health/Documents/health-guidelines-cabin-annoucement-scripts.pdf; and CAPSCA, supra note 140.

144 European Commission, Commission Staff Working Document {COM(2017) 29 final} (19.1. 2017) SWD(2017) 14 final, at 26.

145 See M. Holehouse, ‘David Cameron says Europe’s block on sharing passenger data is “frankly ridiculous”’, Telegraph, 18 December 2014, available at www.telegraph.co.uk/news/politics/david-cameron/11302567/David-Cameron-says-Europes-block-on-sharing-passenger-data-is-frankly-ridiculous.html.

146 ICAO, ‘Guidelines on Passenger Name Record (PNR) Data’, Document 9944 (2010), available at www.iata.org/iata/passenger-data-toolkit/assets/doc_library/04-pnr/New%20Doc%209944%201st%20Edition%20PNR.pdf.

147 IATA, supra note 112, at 2.

148 See ibid.

149 Ibid., at 3.

150 Ibid. See also European Commission, supra note 144, at 25–6.

151 In this sense, the form is concerned with the ‘sins of the flesh’, in contrast to thermoscanning which desires to know the ‘sins by the flesh’; see discussion in Opitz, supra note 44, at 12.

152 See ICAO, ‘Guidelines on Passenger Name Record (PNR) Data, supra note 146.

153 Dunoff, supra note 16, at 138.

154 WHO, ‘Interim Guidance: Travel and Transport Risk Assessment’ (September 2014), available at apps.who.int/iris/bitstream/10665/132168/1/WHO_EVD_Guidance_TravelTransportRisk_14.1_eng.pdf, at 6.

155 Valverde, supra note 20.

156 See, for example, Moon, S. et al., ‘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’, (2015) 386 (10009) The Lancet 2204.

157 See, for example, WHO, supra note 38, at 12.

158 See generally Riles, supra note 19, at 973.

159 Valverde, supra note 20, at 139.

160 Cloatre, supra note 21, at 97.

161 Barker, supra note 40, at 358.

162 In this vein, see Young, M.A., ‘Fragmentation or interaction: the WTO, fisheries subsidies, and international law’, (2009) 8(4) World Trade Review 477; A. Fischer-Lescano and G. Teubner, supra note 62; Viellechner, L., ‘Responsive legal pluralism: The emergence of transnational conflicts law’, 6(2) Transnational Legal Theory 312.

163 In this vein see Riles, supra note 16, at 986.

164 In this vein see Burchardt, supra note 65 and Dunoff, supra note 16.

The authors would like to thank Professor Elizabeth Kirk, Professor Joseph McMahon, Professor Jane Scoular, Dr Padraig McAuliffe, Professor Barry Rodger, Professor Elisa Morgera and two anonymous reviewers for their invaluable support and comments on earlier drafts of this article. Any errors are the authors’ own.

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