Air Transport and Pandemic Law

Albert Camus starts his novel The Plague, which he started in 1941 and published in 1947, with a description of an “ugly” French Algerian town called Oran where “…certainly nothing is commoner nowadays than to see people working from morn till night and then proceeding to fritter away at card-tables, in cafes and in small-talk what time is left for living at Oran” amidst “the violent extremes of temperature, the exigencies of business, the uninspiring surroundings, the sudden nightfall, and the very nature of its pleasures call for good health. An invalid feel out of it there. Think what it must be for a dying man, trapped behind hundreds of walls all sizzling with heat, while the whole population, sitting in cafes or hanging on the telephone, is discussing shipments, bills of lading, discounts! It will then be obvious what discomfort attends death, even modern death, when it waylays you under such conditions in a dry place…”

The Coronavirus (a cousin of the SARS virus (an acronym for Severe Acute Respiratory Syndrome which was first discovered in Asia in February 2003) spread quickly, and as at Saturday 25th January, it had killed 41 people and infected 14,000 people in China. The virus had spread across borders to Thailand, Malaysia, Australia, France and the United States. Festivities in connection with the Chinese New Year have been canceled in Beijing, Hong Kong and other major cities to control the spread of the virus. China is building two new hospitals in the province over the next few weeks (if not days) that would accommodate thousands of affected cases that are expected to be reported over the next few days.

The Coronavirus pandemic has brought to bear the fundamental fact that the spread was due to global population movement mostly caused by air transport. It was therefore inevitable that the central role in facing the crisis would be played by States and the International Civil Aviation Organization as the specialized agency of the United Nations for international civil aviation. On 29 April 2020 the Council of ICAO established its COVID-19 Task force based on the premise that air connectivity is critical to the economic sustenance of the world and that the aviation industry should be restored as soon as possible. The underlying concerns were public health and the world economy, both of which are addressed in the statutory instrument of ICAO—Chicago Convention—and its Annexes. The discussion to follow addresses the relevant legal and regulatory implications for ICAO in addressing the crisis as well as salient economic fallout that have to be considered. The Conclusion suggests how ICAO might look at the future of air transport and strategies and key factors that the ICAO COVID-19 Task Force may wish to consider in its future work.

Understandably, the overall approach of airports to the post COVID-19 pandemic has been focused on cultural adaptation with a view to securing economic sustenance. It follows therefore that economic sustenance would depend on whether the passenger would choose to go through a particular airport if he has other choices, particularly in transit. The operative word in this context would be “confidence” that the airport would generate in the passenger. The quality of service airports has offered thus far are efficiency in delivering services, and convenience. These essential qualities would have to mesh with a new relationship with the passenger whereby the airport offers assurance of awareness of the passenger’s health concerns. This discussion discusses the value of airports in the digital age with which airports can assure the passenger of information sharing in the overall consideration of health and privacy as well as through a global system that encapsulates precautionary measures which airports could take based on their connectivity to the outside world.

At the time this book was being written—in late January 2021—there were many vaccinations available against the COVID-19 virus. However, there were also the usual self serving interests of States and individuals emerging. the Director General of the World Health Organization Tedros Adhanom Ghebreyesus issued a serious warning that the world is on the brink of “catastrophic moral failure” in sharing COVID-19 vaccines. He “urged countries and manufacturers to spread doses more fairly around the world”. According to the Head of WHO, the prospects for equitable distribution which were at “serious risk” just as its COVAX vaccine-sharing scheme meant to start distributing inoculations next month. Dr. Ghebreyesus criticized the “me first” attitude reflected by many countries through 44 bilateral agreements signed in 2020 and 12 such agreements already signed in January this year.

International Health Regulations (IHR) of 2005 of WHO were promulgated with the purpose and scope “to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade” and Article 5 of IHR stipulates that each State Party must develop, strengthen and maintain, as soon as possible but no later than 5 years from the entry into force of the Regulations for that State Party, the capacity to detect, assess, notify and report events in accordance with these Regulations, as specified in Annex 1. Annex 1 provides inter alia that States Parties and WHO must support assessments, planning and implementation processes under the Annex.

As this chapter was being finalized in early May 2021, the latest figures released by the World Health Organization (WHO) were that “globally, there were 153.7 million confirmed cases of COVID-19 infections with 3.2 million deaths recorded and 1047 million vaccine doses administered. The numbers were growing daily as on 21 April 2021 the figures showed that new COVID-19 cases had increased for the ninth consecutive week, with nearly 5.7 million new cases reported in the week earlier – surpassing previous peaks. The number of new deaths had increased for the sixth consecutive week, with over 87 000 new deaths reported”.

The Preamble to the Constitution of the World Health Organization states inter alia that Health is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity and that the extension to all peoples of the benefits of medical, psychological, and related knowledge is essential to the fullest attainment of health. Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people. Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures. With globalization and migration across borders, this essential human right has been brough front and center in the COVID-19 context. Public health has to take into consideration The Universal Declaration of Human Rights of the United Nations which recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world, and provides that everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country, including his own, and to return to his country. The Declaration also provides that everyone has the right to life, liberty and security of person,³ implying that such rights should not be arbitrarily taken away by any means.