Ebola and the airplane – securing mobility through regime interactions and legal adaptation

Abstract

This article concentrates on a particular controversy during the 2014 Ebola outbreak in West Africa; the mass cancellation of flights to and from affected countries. This occurred despite authoritative advice against such restrictions from the World Health Organization (WHO). During a public health emergency such as Ebola, the airplane sits at a site of regulatory uncertainty as it falls within the scope of two specialist and overlapping domains of international law; the WHO International Health Regulations (2005) and the Convention on International Civil Aviation. We explore how legal technicalities and objects, by promoting functional interactions between these two specialized regimes of law, were utilized to deal with this uncertainty. We show how the form and function of these mundane tools had a significant impact; assimilating aviation further into the system of global health security as well as instrumentalizing the aircraft as a tool of disease surveillance. This encounter of regimes was law creating, resulting in new international protocols and standards designed to enable the resumption of flights in and out of countries affected by outbreaks. This article therefore offers significant and original insights into the hidden work performed by legal techniques and tools in dealing with regime overlap. Our findings contribute to the wider international law literature on fragmentation and enrich our understanding of the significance of relational regime interactions in international law.

Ordering global governance complexes: The evolution of the governance complex for international civil aviation

“…More recently, public health emergencies such as SARS, Ebola, and SARS-CoV-2 (Covid-19) have created potential for regulatory conflict by placing air travel within the scope of two overlapping domains of international law: the Chicago Convention, and the WHO’s International Health Regulations (IHRs) (ÓCuinn and Switzer 2019 ). Article 14 of the Chicago Convention obliges contracting states to “take effective measures to prevent the spread by means of air navigation of…communicable diseases”.…”

“…Since the 1990s ICAO has been involved in international consultations to revise the WHO’s existing IHRs in light of the return of old epidemics like cholera in some parts of the world, and the emergence of new infectious diseases like Ebola. 19 In addition to consultation on policy-development, the two organizations have collaborated on practical issues such as quarantine, disinsectization of aircraft, and airport health and sanitary facilities (ÓCuinn and Switzer 2019 ). In light of growing risks of transmitting infectious agents via air-travel, ICAO in 2004 reviewed the compatibility of its aviation standards with emerging new standards for international public health and concluded that, as a result of ongoing consultations, the Chicago Convention and WHO’s IHR were “generally synergistic”.…”

“…The 2003 SARS pandemic damaged consumer confidence in the airline industry, leading airlines to cut flights to affected areas, mainly in the Asia-Pacific. 21 Meanwhile, the WHO counselled against flight cancellations on grounds that travel restrictions would have dire economic consequences for affected countries while doing little to stop the spread of disease (ÓCuinn and Switzer 2019 ). During the 2014 Ebola outbreak in West Africa, ICAO again instituted mass cancellation of flights to affected countries against WHO advice.…”

“…In the aftermath of SARS, ICAO enacted a series of updates to its Standards and Recommended Practices (SARPS) under the Chicago Convention, carefully cross-referencing the WHO’s IHRs. After the 2014 Ebola-outbreak trilateral consultations between ICAO, IATA and the WHO led to the formulation of emergency measures which allowed normal air-travel to resume (ÓCuinn and Switzer 2019 :77).…”

“…In 2006 representatives from ICAO, the WHO, IATA, the Airports Council International and the UN World Tourism Organization founded the Collaborative Arrangement for the Prevention and Management of Public Health Events in Civil Aviation (CAPSCA) to keep emergency guidelines for states up to date. Focused on facilitating safe air-transport during global health emergencies, CAPSCA “performs the important function of ‘overlap manager’ between different domains of law” (ÓCuinn and Switzer 2019 :78–9). 23 The potential for regulatory conflict has thus been gradually reduced, first through coordination, and eventually by affected institutions pooling forces to confront joint challenges.…”