San Diego International Law Journal Issue Search
|Title||The Global H1N1 Pandemic, Quarantine Law, and the Due Process Conflict|
|Author(s)||Gregory P. Campbell|
|Abstract||This comment argues that the CDC should develop a uniform due process standard to govern all quarantine procedures in the United States and then recommend that the standard be adopted by the WHO for incorporation into the IHR. Specifically, the standard should include: (1) a finding by a health professional that an individual poses a significant risk of spreading a contagious disease; (2) a quarantine order by a judicial authority or fact finder based on clear and convincing evidence that an individual poses a serious health risk; (3) an opportunity for a hearing and the right to appeal a quarantine order within one day to the court of issuance, or if such a court is unavailable, to the WHO for referral to an independent international court; (4) the right to speak with counsel and the opportunity to communicate with one’s own government; (5) the right to be transferred to the custody of one’s own government; (6) the right to refuse medical testing, treatment, or the disclosure of personal medical information; and (7) procedures to ensure that a quarantine order is implemented in the least restrictive and intrusive means available. Once the standard has been incorporated into the IHR, the WHO must have the authority to enforce the provisions under the agreement and impose sanctions on members who fail to comply. Further, quarantines should only be implemented on an individual basis since large-scale quarantines are ineffective and cannot be imposed without violating due process rights.
This Comment will first examine the 2009–2010 H1N1 pandemic as a case study and as a recent example of how quarantine orders can impact due process rights. Second, the Comment will discuss the legal foundations for due process rights and how those rights have been restricted by quarantine orders throughout history. Next, the Comment will examine the flaws in the newly revised IHR and how the WHO’s role should be increased to allow for greater cooperation and compliance from member states. The Comment will then examine the current domestic quarantine procedures and the lack of adequate due process protections. Finally, this comment will discuss the realities of quarantine orders and how a uniform due process standard can better prepare the international community for a global health emergency.