Germs on a Plane!: Legal Protections Afforded to International Air Travelers and Governments in the Event of a Suspected or Actual Contagious Passenger and Proposals to Strengthen Them
Alexandra R. Harrington
McGill University – Faculty of Law
Journal of Law and Health, 2007
In August, 2006, American moviegoers watched as passengers on an airplane were terrified by poisonous snakes in the movie “Snakes on a Plane.” In May, 2007, news watchers across the globe were riveted by the true story of an Atlanta lawyer who flew from the United States to several destinations in Europe for his wedding and honeymoon although he was carrying a drug-resistant strain of tuberculosis. The latter event was met with public outcry; the former was a box office hit which played on the fears of viewers. However, the implications of the tuberculosis incident have reverberated throughout the aviation, legal, and medical communities in a way in which fictional killer snakes cannot. The tuberculosis traveler incident illustrated that there are several areas in which travelers are protected by neither law nor medicine. This article will examine two issues which were highlighted by the tuberculosis traveler incident and its aftermath: 1) the effectiveness of the current legal regimes in international law in stopping the health threat posed by individual carriers of communicable diseases who attempt to travel on an aircraft and 2) the legal standards – or lack thereof – applicable to international travelers when their course of travel is interrupted because they are deemed to constitute a threat to public health by the nation to which they are traveling or at an intermediate point during their travels. Part II of this article describes the various applicable international law regimes and provisions which govern air travel and infectious disease as well as several forms of infectious diseases which pose a threat during air travel. Part III discusses the issue of protecting travelers from infectious disease based threats posed by individual travelers. In this Part, the author advocates the creation of a public health-based do-not-fly list akin to the terror based do-not-fly list currently used by the American government to ensure that travelers who pose a threat to public health do not board aircraft or engage in air travel until their health status can be confirmed or they are deemed to be no longer contagious to the general public. Part IV of this article discusses the issue of travelers who have left their home country en route to another country and are denied entry or detained by the destination country – or a third party country through which the traveler is to connect – on the ground of suspicion of illness. Initially, there seems not to be an issue under the terms of the IHR which allow a state to deny entry to any traveler or to hold them for observation, testing, or quarantine on suspicion of illness. However, those are the only rules set forth by the IHR and issues such as how to transport a traveler denied entry on the grounds of illness safely home are not addressed. In this Part, the author argues that simple amendments to the IHR regime and the Vienna Conventions on Diplomatic Relations of 1961 and on Consular Relations of 1963 would clarify these issues and spare future air travelers from uncertainty or unnecessary exposure to infectious disease. The article concludes that addressing the issues raised is an immediate necessity because of the frequency of international air travel, the devastation which both global pandemics and regional outbreaks of infectious disease have, can, and will cause at a variety of levels.