국제법상 전염병의 통제에 관한 연구

A Study on the Control of Infectious Diseases in International Law

The effective control of infectious diseases such as Severe Acute Respiratory Syndrome (SARS) and Influenza A (H1N1) 2009 which threaten the health of entire human race is infeasible without international cooperation because of their peculiar characteristics. Therefore, it is imperative that international framework be constituted for the control of infectious diseases according to international law. For last 150 years, the international infectious disease control law has been primarily developed in the forms of 'soft law' whether it is labelled as treaty, recommendation, resolution or guideline. Since the establishment of WHO, WHO itself and the International Health Regulations (IHR) concluded under WHO Constitution have been the central roles to prevent and control infectious diseases. The IHR, the sole global normative order for infectious disease control, was first adopted in 1969, and was completely revised in 2005. The revision was necessary because the initial IHR (1969) only regulated short list of stipulated diseases, and accordingly could not effectively control re-emerging disease and new emerging diseases. Moreover, WHO's surveillance system was not effective to promote member states complying to IHR 1969. Consequently, IHR 1969 failed to achieve the its purpose and underwent full revision in 2005. The major changes of IHR are followings: i) the ground-breaking expansion of the scope of the IHR's disease application, ii) the reenforcement of WHO surveillance system by granting WHO the power to access and use non-official sources provided by non-governmental entities in addition to Sate Parties' notification, and also granting WHO the authority to declare the existence of public health emergencies of international concern (PHEIC) and to issue recommendation on health measures to be implemented by the Sate Parties, iii) the expansion of obligations on member states to develop minimum core surveillance and response capacities, iv) inclusion of human rights protection in their provisions. The issue of infectious disease has been regulated directly or indirectly under various areas of international law, e.g. international economic law, international human rights law, and international environmental law. First, in international economic law, the SPS agreement permits WTO States Parties to adopt or enforce measures to protect human, animal or plant life or health from infectious disease threat and the TRIPS agreement sets standards in the international rules governing patents, including medicines which are essential in preventing infectious diseases and treating disease. In addition, TBT agreement and GATS agreement are related to the infectious disease issue. Next human rights-based approach to public health measures contributes positively to the control of infectious diseases, and international human rights law plays the role of regulating infectious disease by restricting environmental degradation which may cause the spread of infectious diseases. Besides, other categories of international law related to infectious disease include International Humanitarian Law governing infectious disease issue during armed conflicts, international disaster relief, state responsibility and individual criminal responsibility caused from infectious disease. IHR 2005 was a significant improved previous rules and went a step ahead as the international norm to effectively respond to public health emergencies caused by infectious diseases, and norms of infectious disease control in other areas of international law have significantly improved. Nonetheless, difficulties in the implementation and compliance of the norms are pointed out and their main reasons are following: i) conflicts with national interests, ii) uncertainty of the norms and lack of will to comply, iii) the possibility of conflict between international law and national sovereignty, iv) the lack of ability to implement the norms.