1. Introduction
The 2014/2015 Ebola outbreak claimed over 11,000 lives in West Africa,Footnote 1 and devastated Liberia, Guinea and Sierra Leone, the three most affected countries.Footnote 2 Its extraordinary nature prompted the UN Security Council to categorize it as a risk to international peace and securityFootnote 3 while the WHO, acting under the International Health RegulationsFootnote 4 (IHR 2005), declared it a Public Health Emergency of International Concern (PHEIC).Footnote 5 The WHO also issued temporary recommendationsFootnote 6 that aimed to strike a balance between preventing the international spread of the disease, on the one hand, and avoiding ‘unnecessary interference with international traffic and trade’ on the other.Footnote 7 The WHO IHR Emergency Committee advised against travel restrictions with the exception of Ebola cases and their contacts.Footnote 8
Despite recommendations from the WHO advising minimal travel restrictions to the Ebola affected countries, numerous airlines cancelled their services.Footnote 9 A large number of countries also restricted flights to and from West Africa,Footnote 10 with significant and immediate consequences for the affected area.Footnote 11 Nonetheless, by the time the PHEIC was eventually lifted by the WHO during March 2016,Footnote 12 several airlines opted to resume flights.Footnote 13
Uncertainty and fear played a significant role in the cancellations. From a governance standpoint, the airplane occupies an unclear and fragmented legal space. It falls within the scope of two specialist and overlapping domains of international law; the WHO’s IHR (2005) and the International Civil Aviation Organization’s (ICAO) Convention on International Civil Aviation, or the ‘Chicago Convention’ as it is more commonly known.Footnote 14 While the emphasis of the Chicago Convention may be said to be on securing passenger safety, the IHR (2005) is premised upon protecting global health security through bolstering, among other things, surveillance.
We focus on the cancellation and subsequent resumption of flights during the Ebola outbreak. Much of the legal literature written in the aftermath of the Ebola outbreak has focused largely on the failure of the WHO/IHR (2005) to respond effectively to the outbreak.Footnote 15 Our approach is different; we investigate how the international regimes applicable to public health and aviation co-functioned during the Ebola outbreak and the impact these interactions had on producing certainty and coherence in the governance of infectious disease in air travel. Our account moves beyond the traditional lens of conflict and litigation which has tended to dominate traditional legal accounts of regime interactions.Footnote 16 We instead contribute to the growing literature on international law’s ‘relational interactions’Footnote 17 – the ways in which distinct regimes of law collaborate and ensure coherence through practice.Footnote 18
We demonstrate how ordinary legal tools and techniques – ‘legal technicalities’ – were deployed to harmonize the norms, actors and processes of each regime in responding to the threat of international spread of disease via air travel. While legal technicalities could be dismissed as the uninteresting tools of lawyers, this work adds to an emerging socio-legal scholarship inspired by the work of Annelise RilesFootnote 19 and Mariana ValverdeFootnote 20 which has shown how mundane legal tools exert their own agency, thereby making them worthy of greater attention.Footnote 21 We engage with the role of law by being, as Valverde puts it, ‘simultaneously inside and outside law, simultaneously technical and theoretical, legal and socio-legal’.Footnote 22 In turn, we show how legal tools and artefacts facilitated what we term, the ‘socio-legal adaptation’ of the aircraft; a type of (re)ordering involving law, legal technicalities and artefacts of legal origin that in this case were focused on ensuring the compatibility of two distinct legal regimes.Footnote 23 Thus, socio-legal adaptation reflects a sociological research approach that is open to the complex entanglement of law and the material world, one that is strongly informed by the Actor-Network Theory rejection of explanations of ‘the social’ which do not sufficiently account for the role of ‘non-humans’. In this guise, the socio-legal includes the material world and by extension ‘socio-legal adaptation’ should be understood as a re-ordering of the material and social worlds.
Our work is significant as its highlights the role played by legal technicalities in establishing ‘jurisdiction’Footnote 24 between specialized regimes of international law.Footnote 25 Furthermore, it demonstrates the assimilation of aviation into the cause global health security through the instrumentalization of the aircraft and its crew as facilitators of disease surveillance. Through socio-legal adaptation, uncertainty was (somewhat) diminished and a more coherent governance framework was established for aviation in the context of the Ebola outbreak.
We commence our analysis in Section 2 by detailing how the appearance of Severe Acute Respiratory Syndrome (SARS) in 2003 produced a paradigm shift in the relationship between aviation and public health. SARS spread to 23 countries in a matter of days through international air travelFootnote 26 and in one case it was thought that a single passenger infected 22 of 119 passengers.Footnote 27 We accompany this discussion by drawing attention to the literature on regime interactions, as well as the potential role of legal technicalities in facilitating coherent interactions between the legal regimes of aviation and global health security respectively.
In Section 3, we discuss in more detail the role of the technical in securing functional and coherent regime inter-operation. We demonstrate how over time, the legal regimes applicable to the aircraft became better aligned through the employ of artefacts and practices resulting in the social-legal adaptation of the airplane to the threat of communicable disease. This bridging work would, however, come to be tested during the Ebola outbreak.
In Section 4, we discuss the international response to Ebola and thereby reveal the struggle both within international organizations and the airline industry to contend with the disease. We explore socio-legal adaptations specific to Ebola, all of which aimed to further connect the plane’s interior with disease surveillance systems.
In Section 5, we demonstrate that while legal technicalities can be written off as neutral and uninteresting, they played a significant role in facilitating the ongoing interaction between the applicable regimes of global health and aviation during the Ebola outbreak. Consequently, they were instrumental in developing international law’s jurisdiction on-board the plane. Through efforts that included those facilitating regime interactions, some flights would take off during the outbreak. We conclude by drawing five core conclusions from our study.
2. Regime interactions, inter-legality and legal tools
Airports are a physical manifestation of legal regime inter-operation.Footnote 28 While parked on the runway, the plane exists within the bordered territory of a state and is subject to national laws relating to public health, customs, security and immigration. However, the plane and airport also fall within the scope of multiple international legal regimes including those of the Chicago Convention and IHR (2005). In this way, the airport and the plane are spaces where international norms and laws cohabit and interact with national and local laws and norms. For the air travel project to succeed and operate smoothly, a multitude of legal regimes must co-function.
The appearance of SARS highlighted the shortcomings of international law by exposing a gap in the interaction of the regimes of international health and international air travel.Footnote 29 The disease subsequently drove significant changes in the governance of air transport with respect to infectious diseases.Footnote 30 Indeed, such was the magnitude of the 2003 outbreak that it acted as a ‘tipping point’Footnote 31 for the revision of the IHR (1969)Footnote 32 which had been subject to extensive criticism for its inability to deal with new and emerging infectious diseases. Even with the revision of IHR in 2005, however, there was still something of a ‘gap’ when it came to governing a crucial component of the aviation sector – the interior of the cabin and infected passengers. There were no prescriptions, for example, within the IHR (2005) or the Chicago Convention on the internal characteristics of aircraft and the governance of infected passengers on the airplane.Footnote 33
From the perspective of the Chicago Convention, the ICAO’s reaction to SARS was to recognize that, ‘health issues are becoming a consideration for some in their decision to fly or not’.Footnote 34 In 2004, to ensure the mobility of planes during public health threats, the ICAO reviewed the compatibility of aviation standards with those of public health.Footnote 35 At that time, the Chicago Convention and the (as then draft) IHR (2005) were recognized to be ‘generally synergistic, starting with their shared objective of avoiding unnecessary interference with, respectively, air transportation and international traffic’.Footnote 36 Despite this, a distinct normative gap between the rationalities underpinning the WHO IHR and the Chicago Convention was apparent. While the two regimes certainly overlapped,Footnote 37 they had evolved largely in parallel, each operating through distinct personnel, norms and logics. Hence despite areas of convergence and overlap, they were, for the most part, spatially and functionally distinct.
On the one hand the IHR (2005) are concerned with global health securityFootnote 38 through shoring up surveillance.Footnote 39 The IHR relies on the ‘social sorting’Footnote 40 of the sick from the healthy and emphasizes the importance of core capacities for ‘disease surveillance and response’.Footnote 41 This requires the development of ‘generic capacities that will enable responses to a broad spectrum of contingencies’.Footnote 42 With an emphasis on preparedness the IHR are concerned not so much with population health, but rather, ‘imagining, anticipating, and rehearsing potential responses to emergent diseases that have the capacity to evade detection’.Footnote 43 Preparedness efforts are thus focused on protection of what Collier and Lakoff have referred to as ‘vital systems’ which includes the transport sector.Footnote 44 This can be contrasted with the Chicago Convention which has traditionally focused on the prevention of accidents and ensuring passenger health and safety.Footnote 45 Prior to SARS, the ICAO was mostly interested in the ‘human factors’ dimension of aviation healthFootnote 46 with, for example, efforts to ban smoking in-flightFootnote 47 derived from ICAO’s passenger safety mandate.
In summary, we find two different legal regimes which, while sharing the objective of maintaining international travel, are nevertheless epistemically distinct. This distinctiveness highlights a number of challenges which could give rise to governance issues including; functional overlap,Footnote 48 normative difference, and the potential for jurisdictional uncertainty.Footnote 49 With regards to the latter, for example, we can consider an in-flight incidence of infectious disease as an issue pertaining to international health security. In some circumstances, however, it will be a passenger safety concern. Sometimes it will be both. It is therefore necessary to resolve how the two domains of law inter-operate.
2.1 Regime inter-operation
The wide array of legal regimes governing specific issue areas, often with overlapping competences, has attracted much by way of academic comment.Footnote 50 The so-called fragmentation of international law is seen as a response to the increased specialization and complexity of international affairs.Footnote 51 Nonetheless there exists a general presumption against normative conflict in international law.Footnote 52 This is given effect through techniques and agreementsFootnote 53 aimed at ensuring harmonious legal interpretation and elaboration.
At the doctrinal level, rules such as lex posterior and lex specialis have been developed to minimize inter-systemic conflicts between different international treaties.Footnote 54 Such rules or techniques may, however, be unsuited to the task of dealing with ‘relational interactions’ between international regimes which exercise concurrent authority over actions or events.Footnote 55 In practice, when decision makers encounter regime conflicts, ‘they tend to be resolved in ad hoc political bargains rather than by an application of blackletter principles’.Footnote 56 Likewise the International Law Commission’s report on the fragmentation of international law highlighted the limits of public international law’s response to conflict, suggesting that this may at times be more of a political task.Footnote 57 Johns, however, has challenged this view, pointing to the repetoire of tools and techniques deployed by international lawyers in this space.Footnote 58
Indeed, international lawyers have begun to analyze ‘the positive contribution of … new techniques which courts, tribunals, and other actors have developed in order to coordinate the various subfields of international law’.Footnote 59 Accordingly, an emerging scholarship on ‘relational regime interactions’ has demonstrated that, far from being conflictual in nature, many regime differences are resolved co-operatively.Footnote 60 The pursuit of functional coherence between regimes does not, however, erode differences of norms, rationalities and authority between them. Rather, the focus of scholarship on relational regime interactions is the ‘question of how different regimes and norms could work to support each other, or, in other words, how to achieve synergies’.Footnote 61 For example, Fisher-Lescano and Teubner, in drawing attention to regime interaction, focus on the potential for an ‘operative inter-legality’, which may exist even in the absence of normative consistency.Footnote 62
De Sousa Santos originally coined the term inter-legality to describe how different legal orders intersect but find coherence. This legal interplay is ‘a highly dynamic process because the different legal spaces are non-synchronic and thus result in uneven and unstable mixings of legal codes’.Footnote 63 Regime interactions are part of the work that produces inter-legality. Through this process, law’s subjects, including communicable diseases, are formed at the intersection of different legal regimes. Their interactions establish and consolidate the scope of international law which in turn intersects with other legal orders, including at the national and local scale.
Inter-legality, according to Valverde, is also a product of technical legal work, the invisible co-operation that also determines the where, the who, the what, and the how of legal governance.Footnote 64 What makes a particular issue a matter for public health law or aviation law is, in turn, a product of separating and sorting legal orders, the legal machinery of jurisdiction. Valverde’s reading of jurisdiction portrays inter-legality as a domino effect. Where domains of law overlap or are actively brought together,Footnote 65 their seemingly inevitable inter-operation should be viewed as a product of deliberate technical legal governance.Footnote 66
To understand the workings or the machinery of jurisdiction Valverde suggests, ‘turning-away from high theory and toward the “technicalities” of law’.Footnote 67 Riles also helps us towards an analytical posture from where the mechanics of inter-treaty regime interactions can be appreciated and analyzed from a legal perspective. Her work illuminates the role of the technical, directing attention to the mundane tools of law.Footnote 68 According to Riles, legal technicalities are perceived as being, ‘only a tool, nothing more, and can be used by anyone anywhere for any purpose’.Footnote 69 In this sense, legal technique is inherently practical; it is a ‘series of problem-solving methods, as opposed to theories, a way of disposing of actual regulatory problems, or disputes, or legal puzzles’.Footnote 70 Because of this problem-solving focus, together with (the appearance at least of) political neutrality, legal technicalities are capable of being deployed regardless of their contextual setting. Furthermore, the obviousness of their function often means that lawyers fail to appreciate their importance.Footnote 71
Riles suggests that legal technicalities include everything from legal actors, problem solving paradigms, ideologies, the form of technical legal doctrine, and argumentation.Footnote 72 Far from being inert, they often produce effects through material artefacts and practices.Footnote 73 Bringing such effects into view also allows us to see the potential of the technical to act as a protagonist, not merely as a tool that faithfully mediates the intent of its user.Footnote 74
Rather than choosing between ‘ad hoc political bargains’ or the ‘application of blackletter principles’ to provide an account of the encounter of multiple treaty regimes, this study introduces the role played by legal technicalities. We examine how they feature in facilitating interactions between the legal regimes of aviation and global health security respectively. This untold story of international law – the role of the technical in securing coherent and synergistic regime interactions – contributes to the growing literature on relational regime interactions.
In the remainder of our article, we use the term legal technicalities and legal tools interchangeably in keeping with Riles’ definition. We refer to the materials that legal technicalities act through as legal artefacts; quasi-legal objects, or what Cloatre calls socio-legal objects.Footnote 75
3. A tale of the technical
As demonstrated above, SARS drew attention to uncertainty at the international level on how to deal with the threat of infectious disease spread by air travel. Responding to such concerns would require ‘bridging work’ between the applicable regimes. In this Section, we discuss the form and function of such bridging work, paying particular attention to the role of the technical therein. As we will show, the legal technicalities employed to perform regime bridging work operated under a presumption of compatibility.Footnote 76 These technicalities included the doctrinal technique of instrumental cross-referencingFootnote 77 through to the use of institutional co-ordination linkages.Footnote 78 By dint of these legal tools, the governance of infected airline passengers could be progressively integrated into the existing legal orders.
HO were juris-generative,Footnote 79 and resulted in the elaboration of ‘new international norms’Footnote 80 for air travel during public health emergencies.Footnote 81 Accordingly, over time, the legal regimes applicable to the craft became better aligned through the development of artefacts and practices that resulted in the social-legal adaptation of the airplane to the threat of communicable disease. However, as we discuss in Section 4, this arrangement came under strain with the outbreak of Ebola in West Africa in 2014.
3.1 Close encounters of a regime kind: Cross-referencing and co-ordination linkages
Cross-referencing may operate as a simple legal technique to ensure and promote the reconciliation of overlapping legal domains.Footnote 82 In addition to bolstering coherence claims, cross-referencing may create a presumption of compatibility between the norms and policies of connected regimes.Footnote 83
In the aftermath of SARS, the legal technique of cross-referencing was utilized by the ICAO through its enactment of a series of updates to its Standards and Recommended Practices (SARPS)Footnote 84 under the Chicago Convention.Footnote 85 The updates referenced the IHR (2005)Footnote 86 and detailed, among other things, the need to bolster preparedness by establishing facilities at airports to contend with public health emergencies as well as to develop a National Health Plan to deal with such events.Footnote 87 These references to the IHR by the ICAO were mirrored by the extensive reference to aviation in the IHR (2005), providing implicit recognition of the normative and functional domain of the Chicago Convention and the ICAO.Footnote 88
In addition to cross-referencing, co-ordination linkages would play an important role in resolving potential frictions and ensuring operational coherence between the applicable regimes. From ex ante treaty provisions permitting multilateral co-ordination,Footnote 89 to informal configurations facilitated by memoranda of understanding or co-operation with different secretariats, treaty organs and international organizations, linkages feature heavily in the practice of regime interactions. They can be also considered as a discrete legal technique for the promotion of coherence in rules and implementation, and can, through the production of decisions, guidance and policies, involve an element of treaty interpretation.Footnote 90
In 2006, a decision was taken to establish a ‘coordinating group’ of representatives from, among others, the WHO, International Air Transport Association (IATA), Airports Council International (ACI) and the ICAO to keep the emergency guidelines for states up to date.Footnote 91 This was followed with the development by the ICAO of the Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA).Footnote 92
CAPSCA is tasked to enable ‘cooperation amongst civil aviation authorities, public health authorities, airports, air traffic services, and airlines’ to facilitate an international response to the spread of communicable diseases through air travel.Footnote 93 While not all ICAO member states have joined CAPSCA,Footnote 94 part of its remit pertains to developing guidelines for states, airport authorities and airlines. In this sense, it performs the important function of ‘overlap manager’ between different domains of law.Footnote 95 In addition, it provides a ‘coordination linkage’ between the regimes of the IHR and the Chicago Convention and also helps secure the ongoing enrolment of the private airline industry into public health efforts. The IATA (a private sector organization for the world’s airlines), for example, published its own heavily cross-referenced versions of its operational standards therein. We can see this in its guidance for cabin crew in cases of suspected communicable disease, which advises that:
[a]s soon as possible, advise the captain of the situation because he/she is required by the International Civil Aviation Organization regulations (ICAO Annex 9, Chapter 8, and paragraph 8.15) and the World Health Organization International Health Regulations (WHO IHR 2005, Article 28(4)) to report the suspected case(s) to air traffic control.Footnote 96
Accordingly, we can begin to appreciate the result of cross-referencing and co-ordination linkages between the ICAO and the WHO; not only was the scenario of the infectious passenger integrated into the existing legal orders but this approach was also embraced by the private sector. As we explore below, this would result in socio-legal adaptation of the aircraft interior to the threat of infectious disease, a process that reveals the juris-generative character of relational regime encounters.Footnote 97
3.2 The aircraft and socio-legal adaptation
As a consequence of the co-ordination linkages established between the ICAO, the WHO and the IATA, two modifications to the SARPs were enacted which are especially important to the adaptation of the airplane to communicable disease threats. The first was the creation of a ‘Passenger Locator Form’ in 2007,Footnote 98 followed by the development of a Universal Precaution Kit in 2009.Footnote 99 In respect of the Passenger Locator Form, ‘adequate stocks’ of the form were to be kept on-board aircrafts to enable the gathering of information on passengers’ itineraries and contacts.Footnote 100 This would mean that airlines could avail of the form to assist in tracing exposed person(s), ‘whenever they suspect a communicable disease on-board a flight’.Footnote 101
Universal Precaution Kits were recommended for all aircraft for managing possible on-board communicable disease incidents.Footnote 102 The kit was to contain essential equipment for crew members to safely deal with passengers displaying symptoms of communicable diseases listed in the IHR (2005). Included were personal protective equipment, absorbent powder to mop up fluids, germicidal disinfectant, biohazard disposal bags and a thermometer.Footnote 103
These developments also complemented the pre-existing mandate in Article 38 IHR (2005) which requires the airplane’s crew to complete and submit, if required, information on, ‘health conditions on board during an international voyage and any health measure applied to the aircraft’.Footnote 104 The declaration lists key symptoms associated with communicable disease transmission such as persistent coughing, impaired breathing, persistent diarrhoea, persistent vomiting and bleeding without previous injury. This notification process was intended to bring the aircraft within the IHR’s surveillance infrastructure by acting as a sentinelFootnote 105 for national public health authorities to activate a response.
While the role of the Declaration form was clear, airline crew required direction on how to manage the Passenger Locator Form and the Universal Precaution Kit. The IATA would prove instrumental in this regard, recognizing that cabin crew are not medically qualified and providing guidelines on how to deal in-flight with passengers demonstrating the symptoms listed in the IHR (2005).Footnote 106 In 15 steps, the IATA set out how symptomatic passengers should be isolated, designated a lavatory, and advised on ‘respiratory etiquette’.Footnote 107 Instructions were also provided on using the contents of the Universal Precaution Kit including an impermeable apron to prevent contact with bodily fluids. Lastly, the IATA guidance provided details on contact tracing, advising that all adjacent passengers be asked to complete a Passenger Locator Form and air traffic control notified so that the public health authority at destination can be alerted in accordance with IHR (2005).Footnote 108
The IATA guidance was shaped by the materiality and architecture of the plane as only ‘travellers seated in the same row, 2 rows in front and 2 rows behind the sick traveller [were] to complete a passenger locator card’.Footnote 109 While cabin air is recirculated, it is also filtered to reduce the risk of disease spread.Footnote 110 The downward flow of filtered air created by a standard ventilation system invisibly segregates symptomatic passengers so that the Passenger Locator Form was only required in a two seat radius of the symptomatic passenger.Footnote 111 Through these interactions, new boundaries for sorting and segregating were established with the guidance positioning materials and practices around bodily fluids. As a result, the interior of the aircraft became progressively engaged with the IHR (2005) and its surveillance processes.
The above socio-legal adaption not only linked two seemingly distinct legal domains but also further enrolled the private sector via the IATA. The legal ‘fault lines’ of this co-operation were, however, apparent. As the IATA made clear, ‘[t]he development and execution of measures to combat public health emergencies are the responsibility of states through their public health authorities, not airlines’.Footnote 112 Hence, while the IATA participated in CAPSCA and the development of the Passenger Locator Form it nevertheless ‘always considered [the Passenger Locator Form] to be an interim measure that should eventually be replaced by an electronic method under the responsibility of public health authorities’.Footnote 113 Despite this pushback, the significance of the involvement of the private sector in disease surveillance cannot be underestimated. Accordingly, the combination of these seemingly mundane legal tools and practices has led to, ‘fundamental epistemological shifts’Footnote 114 whereby the rationalities underpinning the system of global health security are increasingly being de-territorialized and applied to aviation. As such, this demonstrates how the ‘global binary’ whereby health security is separated from other fields is diminishing,Footnote 115 as a wider array of actors are assimilated into the field of global health security.Footnote 116
3.3 Summations
Cross referencing and co-ordination linkages between the legal regimes of the WHO, ICAO and IATA and others led to the development of materials, procedures and processes which in themselves performed bridging work between the relevant regimes. This facilitated the socio-legal adaptation of the aircraft; namely, the import of protocols and the Universal Precaution Kit into the aircraft cabin. These socio-legal objects assisted in the constitution of international law’s jurisdiction; that is, the operation of different legal regimes and their boundaries.Footnote 117 Among other things, this helped to resolve how surveillance (IHR) and safety (ICAO) efforts could coexist. Under this, the IHR was hierarchically superior in that its emphasis on preparedness and surveillance drove these relational interactions. However, such hierarchy was informal in that the norms from one regime – that of the WHO/IHR – were implemented through the receiving regime – the ICAO/Chicago Convention. It was, for example, the ICAO which pushed for the development of CAPSCA to increase collaboration between various actors concerned with the overlap of public health and aviation.Footnote 118
Finally, while these socio-legal adaptations were largely intended to adapt the aircraft to the rationalities of global health security,Footnote 119 the arrangements were at best a work in progress with CAPSCA a long way off having all contracting states of the ICAO as members.Footnote 120 However, it is also the case that without the uneasy alignment of extended networks, the generic plane might struggle to operate during an infectious disease outbreak. Indeed, as Latour remarked on the extended nature of networks, ‘Boeing 747s do not fly, airlines fly’.Footnote 121 We will now examine the impact of Ebola on these socio-legal adaptations to understand how they held up during an actual outbreak.
4. Ebola socio-legal adaptation
Following the declaration of the Ebola outbreak as a PHEIC, the WHO advised against general travel restrictions. A large number of WHO member states nevertheless ignored this advice and instituted their own travel and trade measures.Footnote 122 These were accompanied by a slew of cancellations by global and regional airlines such as Air Côte d’Ivoire, Arik Air, Air France, British Airways, Emirates Airlines, and Kenya Airways, resulting in a 64 per cent decrease in scheduled flights to the Ebola affected countries.Footnote 123 In response, the WHO advised that ‘[f]light cancellations and other travel restrictions … [are] resulting in detrimental economic consequences, and hinder relief and response efforts risking further international spread’.Footnote 124 Air travel restrictions in particular ‘impeded recruitment and return of international responders’Footnote 125 and could prompt ‘uncontrolled migration’; the movement of people beyond the reach of the global surveillance framework.Footnote 126
Press releases issued by airline carriers revealed the flights were primarily cancelled for two reasons; pressure from unaffected states and, secondly, concern for passenger and crew safety. According to British Airways ‘[t]he safety of our customers, crew and ground teams is always our top priority’.Footnote 127 While its decision to cancel flights was thought to be unilateral,Footnote 128 it was likely taken following indications from the UK’s Department for Transport that permission to fly routes connected to the Ebola outbreak would be revoked.Footnote 129 Air France received directions from Paris requesting them to end their services to the countries affected by Ebola, and the airline’s staff also signed a petition calling on their employer to avoid Ebola-hit countries for their own safety.Footnote 130 Emirates airline cancelled flights stating that ‘the safety of our passengers and crew is of the highest priority and will not be compromised’.Footnote 131
Aircrew clearly played a key role in highlighting the risk of in-flight transmission. They saw existing standards; the socio-legal adaptations described above, as being insufficient and lacking in detail. The US Association of Flight Attendants, for instance, lobbied federal aviation authorities to adopt a more defined check-list for the safety of their members.Footnote 132 In other words, they were pushing for certainty. The proposed procedures built on the standards developed through CAPSCA and added extra steps for handling IHR reporting obligations, on-board containment of infected passenger, and additional safety precautions. Put plainly, in the search for clear guidance on how to deal with an infected passenger, flight attendants looked to the legal adaptations of CAPSCA. These were then developed to provide greater certainty for those at the frontline of infection.
Would further socio-legal adaptation of the aircraft, manifesting as procedures or checklists, facilitate the resumption of flights? A small number of airlines maintained their operations or recommenced flights in the midst of the outbreak following a brief suspension.Footnote 133 While unaffected states were clearly averse to Ebola spread via air travel, these airlines built on standards developed through CAPSCA. An EU technical inspection mission to Liberia, Sierra Leone and Guinea, for example, found that ‘a number of airlines have introduced additional temperature checks and hand out forms which they process under their own responsibility’.Footnote 134 Belgian Airlines relocated their crew to overnight stays in jurisdictions without Ebola while thermoscanning equipment was used to monitor any passengers showing signs of illness after take-off.Footnote 135 Clearly, Ebola triggered some new ad hoc developments building on existing procedures developed via CAPSCA with the aim of resuming or maintaining flights.
Further energy was invested at the international level in persuading private operators to resume flying to the affected states. The ICAO approached individual airlines to establish the ‘conditions necessary for the resumption of services’.Footnote 136 The ICAO, WHO and the IATA also indicated to states that ‘revisions to the WHO document on travel and transport’ would be considered.Footnote 137 The WHO advised states to keep working ‘with the airlines to facilitate and harmonise communications and management regarding symptomatic passengers under the IHR (2005) mechanisms for contact tracing’.Footnote 138 Clearly, further socio-legal adaptation of aircraft was being considered with the goal of resuming flights. This would once again rely on the technical work of regime interactions bridging the ICAO and the IHR.
4.1 Ebola, regime interactions, legal technicalities, and the plane
Following the Ebola outbreak being declared as a PHEIC, the WHO issued guidance that airline crew should ‘be appropriately trained and medical and universal precaution kits for managing Ebola cases should be available on board’.Footnote 139 Such training would ensure the forms, kits and other artefacts of regime interaction would be properly deployed and choreographed to maximize safety. Two months later, another new socio-legal adaptation appeared in response to Ebola. As with other standards applicable to the plane’s interior, it was jointly developed through co-ordination linkages between the WHO, ICAO, IATA, and the Airports Council International (ACI).Footnote 140 The document was labelled the ‘Traveller Public Health Declaration Form’.Footnote 141
This form asked travellers to self-report any symptoms experienced within the past 48 hours, or Ebola exposure during the past 21 days. This information would be passed to authorities to target their screening efforts and augment their ability to trace passengers should an infection manifest at a later point. It could co-function alongside the IHR’s less specific health part of the Aircraft ‘General Declaration’Footnote 142 which was to be used to notify destination states when a suspected case of infection manifested in-flight.
Where adopted, the ‘Traveller Public Health Declaration Form’ replicated some aspects of – but did not replace – the previously discussed Passenger Locator Card Form (PLF). This new document requested personal details, flight and seat number but, in contrast to the PLF, it operated without the need for a suspected case of infection on board and the plane did not have to depart from a state affected by an outbreak. Now the mere existence of an outbreak and/or the declaration of a PHEIC would be sufficient to deploy the Traveller Public Health Declaration Form, even if the affected area was not connected to the flight path. Lowering the threshold for gathering passenger data meant that airlines could more readily respond to the risk of transmission through air travel while reassuring destination states that connecting flights would not constitute a gap in surveillance.
Guidance accompanying the Traveller Public Health Declaration Form recommended it be completed and ‘reviewed prior to clearance to board’ or before passengers left the plane. To ensure this happened, the IATA developed a ‘script to be read by cabin crew to passengers prior to arrival’;Footnote 143
Ladies and gentlemen, Actions have been put in place by public health authorities in response to the ongoing outbreak of Ebola … Public health authorities require that all travellers [sic] complete a health declaration form before arrival … Every traveler [sic] must complete a form … This is required as a precautionary measure even if you are feeling well.
Together this form and script illustrate the deepening enrolment of private sector airlines into the IHR surveillance network. It also represents a move towards securing complete public health data from all passengers, a development which triggered alarm bells with airline companies. During the Ebola outbreak, calls for greater data sharing to facilitate the effective tracing of passengers included the proposed automated sharing of passenger data. At the height of the outbreak US Customs and Border Protection shared 21 Passenger Name Records (PNR) with the US Centre for Disease Control (CDC)Footnote 144 while the UK ‘also demanded the information from a handful of airlines to identify people travelling from areas hit by Ebola [so as to] target them for screening’.Footnote 145 PNR data is information provided by passengers and automatically collected by air carriers during reservation and check-in procedures. It includes information such as travel dates, travel itinerary, ticket information, and contact details.Footnote 146
The airline industry was implacably against the burden of PNR data sharing with the IATA, advising that ‘States should be discouraged from implementing disproportionate and unworkable new passenger data requirements’.Footnote 147 The IATA presented the proposed measure as a travel restriction with the potential for producing undesirable outcomes for surveillance and public health:
[A]s States start indicating their intent to control passenger movements via provision of PNR, those seeking to flee Ebola affected States will actively evolve their strategies. They will start booking separate tickets (i.e. Western Africa to a European transfer hub and then a separate reservation from that EU hub onward). In those cases – the PNR will not show the true origin and the carrier boarding the person at the EU hub will have no access to up-line data. We therefore believe that such passenger data requirements are invariably disproportionate to the potential benefits they could derive.Footnote 148
Companies with passenger data processed in the EU, it was claimed, would be legally prohibited from providing PNR data to third countries without a specific data protection agreement in place.Footnote 149 Moreover, data transfer would typically be restricted to a case-by-case basis.Footnote 150 In this context, the Traveller Public Health Declaration Form can be understood as a substitute for PNR data sharing, a confessional space for the passenger to provide all of the data needed for effective contact tracing.Footnote 151 It could capture data on journeys with multiple flights and not just those coming directly from countries enduring an outbreak by asking passengers to:
[l]ist all countries where you have been in the past 21 days (including airports and port transits and where you live). List the most recent country first (where you boarded). If you need more space use the back of the page.
It could also speak to the concerns of those countries pushing for flight cancellations, entry screening or additional PNR sharing by capturing relevant information without the burden of managing the transnational sharing of passenger data. Furthermore, unlike PNR data,Footnote 152 this form was better adapted to capturing passengers changing seats mid-flight, thereby assisting better contact tracing and surveillance.
The Traveller Public Health Declaration Form is an example of socio-legal adaptation prompted by the Ebola outbreak. It emerged from the relational space of CAPSCA and embodied the bridging work between the norms and actors of two legal regimes. Their reconciliation involved socio-legal adaptions explicitly directed at improving safety (Chicago Convention) but also deepening surveillance measures (IHR). The practice of regime interaction also reveals the role played by private air carriers as transnational implementers of public health and aviation norms as well as their progressive incorporation into global surveillance networks.
4.2 Summations
The complex arrangements discussed above required an uneasy alliance between many different actors working through the multilateral space of CAPSCA. As a collaborative arrangement, CAPSCA came into existence as a response to legal diversity and specialization. All actors engaged in this space were united through problem-driven governance toward the shared goal of the mobility of the aircraft during an outbreak of infectious disease. While rooted in compromise, this did not mean that the norms, rationalities or obligations of the IHR, the Chicago Convention, and the private sector regimes would automatically co-function. Even with the changes articulated above, not all private sector operators recommenced flights. In other words, while efforts such as the Traveller Public Health Declaration Form were representative of attempts to facilitate regime inter-operation, there was contingency to such efforts. Nevertheless, they provide a snapshot of the use of legal tools and artefacts to facilitate regime interaction; a cumulative process with its origins in the SARS outbreak.
5. Translations
Infectious disease can be a fearsome teacher and the events of SARS brought attention to how globalized travel can hasten the spread of disease internationally. It also highlighted the existence of a regime ‘gap’ as the regimes of global public health and aviation provided insufficient guidance on how the generic infected passenger should be governed. Efforts after SARS to close that gap are still ongoing and the 2014 Ebola outbreak in West Africa provided a further punctuation point to these processes.
The existence of a gap between the Chicago Convention and the IHR was not an instance of conflict within international law. At the doctrinal level, there are rules of the conflict of laws aimed at minimizing or avoiding intra-systemic conflicts between different international treaties using rules to assert jurisdictional hierarchy, e.g., lex specialis. These would not, however, have addressed the regime overlap at play when dealing with infectious disease spread via air travel. What was required instead was a synergistic and coherent response aimed at addressing a common concern; that of ensuring the mobility of the airplane during an infectious disease outbreak.
The fragmentation of international law leads to questions of how different regimes avoid and resolve conflict as well as how they interact to address issues of common concern. Scholarship on relational interactions has acknowledged that particular regimes can ‘exercise concurrent authority over actions or events’ and hence, are often focused on ‘the articulation of new international norms to prospectively govern behaviour within a particular area of international relations’.Footnote 153 Here, quite clearly, we are dealing with a similar concern; two regimes with concurrent authority over a particular issue. What our study revealed was the importance of legal technicalities in this process.
This technical work, designed to facilitate regime inter-operation, provided scaffolding for regime bridging work at particular legal scales. Ebola, for instance, was classified as being of ‘international concern’, resulting in the IHR and Chicago interacting to provide detailed standards for this international scale. At the same time, Ebola can be interpreted through a more local legal scale, such as the health and safety concern for a particular airline crew or public health risk at the national level in unaffected states. Rather than looking into how these local, national and international scales are sorted, flight cancellations exposed the struggle of the international legal regime to even feature in this aspect of the governance of communicable disease outbreaks.
Technical bridging work, including socio-legal adaptation of the aircraft, was hence a process of articulation for the international scale. How should two international legal regimes fit together to speak coherently and enable the speaking of international law, or international juris-diction? As a result, regime interactions focused on bringing the IHR and the Chicago Convention together but their integration would also need to be worked out in the concrete situation of the flight. Eventually, increasingly clear international guidance for ‘international air transport’ would emerge from the shadow of Ebola. Take for instance this interim guidance from the WHO stating that:
[n]ational public health authorities should coordinate with aircraft and airport operators and ensure that Passenger Locator Forms are available in flight and/or at destination airports. Airport personnel and cabin crew should be appropriately trained for managing EVD cases/contacts, and medical and universal precaution kits should be available on board, in accordance with International Civil Aviation Organization (ICAO) guidelines.Footnote 154
Essentially, we see the two regimes interoperating through a choreography managed by air crew. Training and guidance indicated when to use safety kits (Chicago Convention) and when to deploy surveillance tools (IHR). We saw with Ebola that further technical work was required, resulting in the creation of additional legal artefacts such as the Traveller Public Health Declaration Form. Our study suggests that these adaptations played a significant role in translating rationalities of international law into the ‘lower level’ legal scale and procedures of managing airline travel and passengers. With a more coherent framework, these quasi-legal objects and procedures could facilitate international law gaining more ‘bite’ in decision-making around flight cancellations by national and private-sector actors.
Promoting international law in the response to Ebola is what Valverde would call jurisdiction; an intervention in the sorting process determining which legal scale applies when (and how).Footnote 155 Technical work to adapt, modify and translate international law into a suite of procedures, forms and kits aimed to encourage flights to continue during the Ebola outbreak. Understanding regime interactions in this way helps us to appreciate the hidden technical legal work that forms part of a complex response of global health security.
Accordingly, while legal technicalities can be written off as neutral and unworthy of further attention, they played a significant role in defining international law’s jurisdiction and in facilitating the ongoing interaction between the applicable regimes. The resultant regime interactions did not, of course, produce full compliance with the WHO’s recommendations; not all flights recommenced and, as we saw, there was also pushback by the private sector. However, it is also clear that the ongoing interactions between the applicable regimes helped facilitate an increasingly coherent set of standards for supporting the goals of global health security.
6. Conclusions
Much has been written on the international response to the Ebola outbreak in West Africa with a particular focus on the ineffectiveness of the WHO response.Footnote 156 We have not wished to supplement this already comprehensive literature. Our study was prompted by an interest in the cancellation of flights to the affected region despite an authoritative consensus to the contrary. While there has been some work looking at how best to hold to account states which enact disproportionate trade and travel restrictions during PHEIC,Footnote 157 there has been scant scrutiny of the processes that operated to facilitate compliance and, in this case, the resumption of flights. The interactions between public health and aviation regimes have also attracted little attention. Despite a growing socio-legal scholarship on the role of legal technicalities in public health, no comprehensive study has yet been undertaken on the importance of legal technicalities in securing regime inter-operation in this domain.
Our study attempts to address the above gaps in the literature. We demonstrated how legal technicalities, while often written off as mundane and unworthy of attention, were deployed to harmonize the norms, actors and processes of each regime in responding to the international spread of disease via air travel. This work therefore builds upon an emerging scholarship inspired by the work of Annelise RilesFootnote 158 and Mariana ValverdeFootnote 159 which has shown how mundane legal tools exert their own agency, thereby making them worthy of greater attention.Footnote 160 Far from inert, they ought to be factored in when considering the international response to an outbreak or other complex multi-sectoral concerns. Our exposition of the technical in securing coherent and synergistic regime interactions further contributes to the growing literature on relational regime interactions.
From the foregoing analysis, we wish to draw five significant conclusions. The first is the idea that efforts to respond to Ebola and indeed infectious disease more generally by necessity implicate ‘the legal’. It is present in how disease is measured, monitored and addressed. In the context of our study, such legal work included the operation of legal technicalities and deployment of objects to facilitate the inter-operation of the IHR (2005) and the Chicago Convention. While the two regimes contained different rationalities, the creation of co-ordination linkages helped to resolve their functional overlap as well as mediating the participation of the private sector. Through this arrangement, the ensuing production of legal practices and objects contributed to the adaption of the aircraft to outbreaks.
Second, the adaptation of the aircraft to address the threat posed by communicable diseases is part of an on-going, complex modification of sanitary frontiers. We demonstrated how the production of the Traveller Public Health Declaration Form and specialized kits brought the private sector more firmly into the fold of bordering processes and the surveillance regime underpinning global health security. They were now engaged directly in the separation and ‘social sorting’Footnote 161 of the sick from the healthy between national frontiers. This assimilation also has the effect of instrumentalizing aircrew and the aircraft as tools of disease surveillance.
Third, the adaptations that occurred post-SARS did not flow from a single international legal regime or from a plurality of legal regimes with a clear hierarchy. Rather, hierarchy was emergent; a function, among other things, of the hybrid space of CAPSCA which worked to bridge two specialized regimes of law. Our article fits within the wider international law literature on relational regime interactions and demonstrates how such interactions may not flow from a normative or singular hierarchical source. Rather, they may encompass a range of actors and norms within a highly plural legal space; a decentralized operative legality.Footnote 162
This process ultimately came to be driven principally by the IHR. It was ordered by the norm of global health security with its attendant focus on surveillance and preparedness. In this context jurisdiction, that is the question of which regime operates where and when, is compostable, contingent, and not dependent on doctrinal legal hierarchy. Thus, in the context of the Ebola outbreak, when the private sector expressed reluctance to take on duties traditionally borne by departure and arrival states, we saw how the assemblage giving rise to jurisdiction could unravel.
Fourth, in our focus on legal technicalities, we found that tools really do matterFootnote 163 when it comes to regime interactions. Legal technicalities and artefacts were at the forefront of public health efforts at ensuring the mobility of international flights. The inclusion of additional public health procedures and forms as well as the Universal Precaution Kit – a box the size of a suitcase – were legally charged artefacts aimed at the lifting of restrictions on flights during the height of an outbreak. Thus, regime interactions and the legal technicalities they implicate are an overlooked but integral feature of global health governance. Our findings may have value for other areas of international law and help to revise theoretical accounts of how international legal regimes interface.Footnote 164
Fifth, we found that the aircraft is a site of legal contestation. Tensions were revealed between the intersections of legal systems. These were particularly prevalent when it came to the collection and handling of passenger data and were only partly resolved by the bridging work performed between the regimes. This reveals a legal plurality within the constitutive assemblage of global health security; a finding which has significant implications for the development of international responses to infectious disease.
While we have been able to draw a number of original and significant conclusions from our analysis, there are numerous areas ripe for further research. In particular, it is clear that more attention ought to be payed to the legal techniques of regime interactions in response to complex multi-sectoral challenges.
Author ORCIDs
Gearóid Ó Cuinn 0000-0002-0534-2961, Stephanie Switzer 0000-0002-3928-988X
