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Quarantines and Immigration Barriers in the Context of Ebola and Human Rights

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In the last days the controversy surrounding the decision by Australia to put a stop on the issuing of temporary visas for persons from countries affected by Ebola and a quarantine debate in the United States have led to controversy and to a court order on 31 October 2014. Earlier I had argued that there can be cases in which a quarantine can be justified. In light of recent developments, although I maintain this view, this requires an addition which I had taken for granted in the earlier text: a quarantine can be justified under human rights law if there are medical reasons for the quarantine.
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    Quarantines and Immigration Barriers in the Context of Ebola and Human Rights Stefan Kirchner In the last days the controversy surrounding the decision by Australia to put a stop on the issuing of temporary visas for persons from countries affected by Ebola 1  and a quarantine debate in the United States have led to controversy and to a court order on 31 October. 2  Earlier I had argued that there can be cases in which a quarantine can be justified. 3  In light of recent developments, although I maintain this view, this requires an addition which I had taken for granted in the earlier text: a quarantine can be justified under human rights law if   there are medical reasons for the quarantine. When writing my earlier text I had underestimated the paranoia associated with this disease in some countries. While it is hard to judge the decision by the Australian government because without the information which are available to the Australian government and which led to this decision, in principle states are of course free to decide who gets to enter their country and who not. However, fear should not lead to destroying the benefits of globalization, such as freer travel. Governments have a positive obligation to take responsible measures which protect public health but also respect the human rights of patients and those who are suspected of being infected. Keeping in mind that it is possible to test for Ebola and that, as far as the disease is understood today, it is necessary for a patient to show symptoms in order to be infectious (although contact with corpses of deceased Ebola victims is blamed for a large number of infections 4  and according to the World Health Organization sperm of former Ebola patients remains infections for some seven weeks after the patient has recovered from Ebola 5 ) requiring a doctor ’ s certificate to be Ebola free would provide a less intrusive solution which would lead to the same result but would not ban travel outright. Also quarantining e.g. foreign humanitarian workers who return from the countries most affected by Ebola raises serious issues. Humanitarian workers who return to their home countries should not be treated by criminals and while governments have the duty to protect public health, any such measures have to be based on science rather than panic. It has to be kept in mind that the current Ebola outbreak is unprecedented and that knowledge about the disease is still gained every day. This is a global health problem which needs rational solutions, based on science, not based on fears or discrimination. Many local volunteers in the West African countries most affected by Ebola have suffered from discrimination e.g. from their landlords, neighbors and even family members. Such behavior is unacceptable. Without the work of people who risk their lives to care for others, including proving as dignified a burial as possible under the circumstances, the situation in the affected countries would be even more dire than it is already. There must not be any stigmatization of Ebola survivors or of health care workers. At this time, while some countries are sending professionals who in one way or the other are employed by the state, including members of the armed forces, such as the US forces operating in Liberia, the brunt of the burden is borne by civilian volunteers, such as those who serve with the non-governmental organization Doctors Without Borders ( Médecins sans frontières , MSF). While the international community was late in reacting to Ebola, concerted efforts will make it possible to 1  No author named, Federal Government to stop processing visa applications from countries af-fected by Ebola, 27 October 2014, http://www.abc.net.au/news/2014-10-27/government-visa-applilcations-ebola/5845048.  2  Maine District Court, Mayhew v. Hickox, CV-2014-26, Order of 31 October 2014, http://www.courts.maine.gov/news_reference/high_profile/hickox/order_pending_hearing.pdf.  3  Stefan Kirchner, Ebola, Human Rights and Health Discrimination, JURIST, 20 October 2014, http://jurist.org/forum/2014/10/stefan-kirchner-health-rights.php.  4  On safe burial methods see World Health Organization, Use Safe Burial Practices, http://www.who.int/csr/resources/publications/ebola/whoemcesr982sec7-9.pdf.    5  World Health Organization, Ebola virus disease, Fact sheet No. 103, http://www.who.int/mediacentre/factsheets/fs103/en/.     limit the spread of the disease. This, however, will require a continued international effort to com-bat ebola and to help the people affected - no matter where they come from. Those who risk their lives in the fight against Ebola, whoever they are, local staff, volunteers with MSF or other organizations, the American soldiers, the doctors from Cuba, and many more who will never make it to the news, the people who transport the bodies of the dead, priests, nurses, all of them, are heroes and should be treated accordingly. Courts around the world have outlawed discrimination based on a persons health status, although the protection of public health is of course possible. What would hardly be compatible with human rights obligations in many if not most countries would be restrictions of human rights which are grossly disproportionate and unnecessary, such as quarantining persons who are known not to be infected and who have tested negative after the incubation period. Sometimes quarantine will be medically necessary, but that does not mean treating people like suspected criminals. The human rights and human dignity of everybody has to be protected, even if it is medically necessary to take measures to protect public health.  ________________________ Stefan Kirchner is Associate Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland. He is admitted to the bar in Germany. A former lawyer for Germany  ’   s Federal Maritime and Hydrographic Agency, Emergency Medical Technician, Firefighter and Assistant Professor for the Law of the Sea at Vytautas Magnus University in Kaunas, Lithuania, he works on human rights in the context of maritime and Arctic issues, biolaw and indigenous rights. He currently also serves as Co-Chair of the Rights of Indigenous Peoples Interest Group of the American Society of International Law. This text only reflects his private opinion.

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