Emergencies produce moral questions with no good answers. Broward County is facing one. Two cruise ships, the Zaandam and the Rotterdam of Holland America Line, are expected to reach Fort Lauderdale on Wednesday, April 1, and request disembarkation in Port Everglades. As of March 30, 76 guests and 117 crew on the Zaandam have influenza-like symptoms. 8 people tested positive for COVID-19. The Rotterdam was sent to rescue healthy passengers from the Zaandam. Both ships are stranded at sea, rejected from various ports along the South American coast. Combined, there are over 300 United States citizens on the ships, including 49 Floridians. Lives are at risk. Some are already lost: four guests passed away onboard. The question of what to do—to help (and to what extent) or not to help—now burdens Florida officials.
This dilemma is unprecedented. The World Health Organization (“WHO”) foresaw situations like this, however, and provided the International Health Regulations (“IHR” or “the Regulations”). The Regulations specifically address moral quandaries at ports of entry during health crises and give special consideration to individuals facing imminent peril.
The WHO passed the Regulations in 2005. They are binding on all 195 countries in the WHO, including the United States. The Regulations’ scope includes providing proportional government responses against the international spread of disease. Among other things, this includes supplying protocols intended to maintain the balance between “the protection of human rights of persons and travelers” and sovereign powers during a public health emergency at points of entry. SeeIHR Articles 2–3.
Generally, governments cannot refuse ships and aircraft from disembarking ill passengers on public health grounds. Article 28 of the IHR (“Ships and aircraft at points of entry”) dictates that port authorities cannot refuse ships or aircraft “free pratique . . . for public health reasons; in particular they shall not be prevented from embarking or disembarking, discharging or loading cargo or stores, or taking on fuel, water, food and supplies.” See IHR Art. 28(1)–(2). During international health crises, however, governments can implement additional health measures that abrogate the prohibitions in Article 28, Paragraphs 1 and 2. See IHR Art. 43(1)(b).
In enforcing additional measures during health crises, including closing port, officials must take consideration of individuals’ fundamental rights. If such measures are enacted, the Regulations require that they “shall . . . not be more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection.” See IHR Art. 43(1). No matter the circumstance, governments are required to “treat travelers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures,” including providing “appropriate medical treatment.” See IHR Art. 32. In effect, these additional health measures allow governments to avoid certain prohibitions imposed by the Regulations, such as those in Article 28, during an international health crisis, but the measures must be narrowly tailored and not violate fundamental rights.
The dilemma facing Broward is not an easy one, but it is slightly simpler if framed under the Regulations’ considerations in closing port: what are the narrowest available measures that ensure individual fundamental freedoms (i.e. allowing for medical treatment to those who need it) are not infringed while minimizing the burden on the people of South Florida?