USA Military Exemptions in International Treaty Law – Should Australia Follow Suit?

Abstract

In 2006 the Government of the United States of America lodged a reservation against the World Health Organization’s (WHO) International Health Regulations (2005) (IHR (2005)) that effectively nullified certain provisions with respect to the operations of USA Armed Forces. The aim of the IHR (2005) is to detect, prevent and control public health events of international concern; it does not contain provisions that explicitly relate to the militaries of States Parties. While public health considerations are undoubtedly important to the military, it is difficult to envisage how an international treaty on public health might directly obstruct military operations. This article will outline how certain provisions of the IHR (2005) might perceivably affect the ability of militaries to conduct operations in accordance with military priorities. The article concludes that to secure operational manoeuvrability, the Australian Government should consider lodging similar exemptions to future international treaties, even if those treaties do not appear to affect the Australian Defence Force directly.

Introduction

International treaty law is a valuable, if flawed, means of regulating the interactions between Nation States. The Vienna Convention on the Law of Treaties (1969) (Vienna Convention) recognises the principles of ‘sovereign equality and independence of all States’ and of the ‘non-interference in the domestic affairs of States’.¹ This creates the paradox that underlies all treaty law: in entering into an international treaty, the sovereign State must forego a measure of its sovereignty. International treaties must be entered into and performed in good faith.2 While laws are only as strong as their ability to be enforced, and that ability on the international stage is admittedly deficient, in international law it is often the desire to be seen as a good global citizen that compels States to accede to, and abide by, treaty obligations.

The Australian Government has been party to the only legally binding international public health treaty, the International Health Regulations (2005) (IHR (2005)), since its adoption by the World Health Organization (WHO) in May 2005. The purpose of the IHR (2005) is ‘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’.³ In becoming a party to this treaty, the Australian Government accepted all the obligations codified in its provisions.

This was not the case for the Government of the United States of America (USA), our long-term military ally under the 1951 Australia, New Zealand, United States Treaty (ANZUS Treaty). When acceding to the IHR (2005), the USA Government lodged a legal reservation and a series of three understandings which acted to modify the extent to which some of the provisions of the IHR (2005) would apply to the USA. Of interest to this discussion is the declaration that the USA Government made with respect to Article 9 of the IHR (2005) that obliges States Parties to notify the WHO of any evidence of a health risk occurring outside of its territories. On this point the U.S. Government stated that ‘[a]mong other notifications that could prove to be impractical under [Article 9], it is the United States’ understanding that any notification that would undermine the ability of the U.S. Armed Forces to operate effectively in pursuit of U.S. national security interests would not be considered practical’.⁴

The USA is famously averse to incursions on its national sovereignty, but this declaration is so specific as to be intriguing. The events of the last decade have demonstrated that the USA Government is generally very supportive of the IHR (2005) and have taken an active whole-of-government approach to implementing its provisions, both within the USA and abroad. How might an international public health treaty foreseeably affect the USA Government’s ability to protect its national security interests? There is little doubt that public health considerations are vital when it comes to conducting military operations, but there is little in the IHR (2005) that should immediately spark the ire of operational commanders.

This article will outline how certain provisions of the IHR (2005) might perceivably affect the ability of militaries to conduct operations in accordance with military priorities, as opposed to international public health priorities as determined by the WHO. It will illustrate how the USA Government’s declaration acts to modify the legal effect of Article 9 of the IHR (2005) with relation to USA military operations. The reasons as to why a military exemption of this nature might have been seen as necessary by the USA Government will be delineated. While it is too late for the Australian Government to consider lodging a similar exemption to the IHR (2005), the USA Government’s military exemption makes for a more broadly applicable case study into the potential benefits and limitations of military exemptions to future international treaties. The article concludes that the Australian Government should consider similar military exemptions for future international treaties, even in circumstances where those treaties may not appear to have direct implications for the Australian Defence Force (ADF).

The International Health Regulations (2005)

The IHR (2005) is the legal keystone of the WHO’s ability to monitor, assess and respond to global health threats. In 1951 the WHO adopted the International Sanitary Regulations (1951) as a non-binding set of directives designed to curtail the international spread of six specific diseases: cholera, smallpox, relapsing fever, epidemic typhus, plague and yellow fever.⁵ These regulations were revised by the WHO in 1969 and made legally binding as the International Health Regulations (1969) (IHR (1969)), the world’s first source of binding international law regarding the protection of public health. The IHR (1969) eventually became to be seen as a relic, abandoned to the over-optimistic but prevailing assumption of the late-20th Century that infectious diseases were a thing of the past. By the time the 48th World Health Assembly called for their renegotiation in 1995, the IHR (1969) only applied to cholera, plague and yellow fever.⁶ The emergence of the SARS (severe acute respiratory syndrome) coronavirus in 2003 demonstrated to the world that we were not wholly prepared for novel threats to global health and that the IHR (1969) was not an adequate framework with which to tackle such problems. This incident created the political will to finalise an enforceable and expansive global public health treaty and in May 2005, after 10 years of negotiations, the 58th World Health Assembly adopted the IHR (2005). The result was a broad and forward-looking treaty that is legally binding on all 196 States Parties, including every Member State of the WHO as well Liechtenstein and the Holy See.⁷

The IHR (2005) was novel in that rather than being applicable to a specific and antiquated handful of infectious diseases, the new Regulations encompassed all threats to global health from any origin. The aim of the IHR (2005) is to ‘prevent, protect against, control and provide a public health response to the international spread of disease’⁸ and its scope is applicable to any chemical, biological and radionuclear agents, whether natural or synthesised. Where the old IHR (1969) only mandated public health measures at designated entry and exit points (eg. sea ports), the IHR (2005) requires that States Parties implement public health capabilities throughout their whole territories. Importantly, all the provisions of the IHR (2005) apply to and are legally binding on the entire government of States Parties, not solely to specified ministries or departments of health. The IHR (2005) provide the mandate for the WHO to declare a public health emergency of international concern⁹ and to act as the overseer and coordinator of any public health response on an international scale.

At the time that the IHR (2005) were agreed, the USA made a declaration that had the effect of exempting USA Armed Forces from certain provisions of the treaty. While ‘[t]he IHR (1969) and its predecessor treaties did not affect military forces significantly’,¹⁰ the newly-agreed IHR (2005) were deemed by the USA Government to have a potential adverse effect on the USA Armed Forces’ ability to protect their national interests adequately.

The USA Government’s Reservation to and Understandings of the IHR (2005)

The Vienna Convention on the Law of Treaties (1969) defines a ‘reservation’ to an international treaty as ‘a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in application to that State’.¹¹ Essentially, a reservation, if not specifically prohibited by the text of a treaty, allows a State to attach certain qualifications or exclusions against specific provisions of the treaty whilst still becoming a Party to the balance of the treaty.

Article 62 of the IHR (2005) stipulates that States Parties may make reservations that ‘are not incompatible with the object and purpose’ of the treaty and reservations had to have been made within 24 months of the adoption of the IHR (2005).¹² On 13 December 2006 the Permanent Mission of the USA to the United Nations Office in Geneva filed an official Reservation and three Understandings, as follows (paraphrased):

Reservation: The U. S. Government reserves the right to implement the provisions of the IHR (2005) in accordance with the fundamental principles of federalism.

Understanding 1: The U. S. Government understands that the IHR (2005) apply to all health threats, ‘irrespective of origin or source, whether they involve natural, accidental or deliberate release of biological, chemical or radionuclear materials’.

Understanding 2: With reference to Article 9(2) of the IHR (2005) which stipulates that ‘States Parties shall, as far as practicable, inform WHO within 24 hours of receipt of evidence of a public health risk identified outside their territory’, the U. S. Government understands that ‘any notification that would undermine the ability of the U.S. Armed Forces to operate effectively in the pursuit of U.S. national security interests would not be considered practical for the purposes of this Article’.

Understanding 3: The U. S. Government understands that the IHR (2005) does not create a separate private right of legal action against the U. S. Government with respect to the IHR (2005).

In accordance with the IHR (2005) if one-third of the States Parties to the IHR file an objection to a reservation within six months of the reservation being filed, then the Director General of the WHO must give the reserving State the option to withdraw the reservation.¹³ If, after three months, the reservation has not been withdrawn, then the Director General can submit the reservation to a review process, the outcome of which is provided to the World Health Assembly and put to a majority vote of WHO Member States.14 If the reservation is not accepted then the State making the reservation is deemed to be a non-party to the IHR until such time as the reservation is withdrawn.¹⁵ If, however, the World Health Assembly accepts the reservation, then the IHR are deemed to apply to that State Party subject to the terms of their reservation.16 Only one objection to the USA Government’s Reservation was submitted. On 20 April 2007 the Permanent Mission of the Islamic Republic of Iran to the United Nations Office in Geneva filed an objection to the USA Government’s reservation on the basis that ‘the reserving Government attempts to evade its due responsibilities and obligations’ under the IHR (2005).17 Furthermore, Iran stated that Understanding 2 constituted ‘an attempt to place national interests above the treaty obligations by excluding the U.S. Armed Forces from the IHR bindings’.¹⁸ As no other objections were filed, the USA remains a State Party to the IHR (2005) subject to the terms of the Reservation and Understandings lodged at the time of their accession.

The issue of federalism, cited as a fundamental principle in the USA Government’s Reservation, is a relatively straightforward one in the context of international treaty law. The USA, much like Australia, exists as a federation of states. Approximately 40 per cent of countries are structured in this manner.¹⁹ In acceding to a multilateral treaty, federal governments are entering into an agreement that may not strictly lie within their jurisdiction. That is, the USA Government may have difficulty in forcing state government public health departments to comply with the provisions of the IHR (2005) within the stipulated timeframes. Indeed, prior to the introduction of these Regulations, the USA state governments ‘voluntarily reported conditions or diseases to the national authorities’ as ‘a matter of custom rather than overarching law’.²⁰ Accordingly, in their Reservation to the IHR (2005) the USA Federal Government is simply acknowledging the characteristic dilemma of federalism²¹ and accounting ‘for the demands of their national constitutional structures and systems of law’.22 Similar issues were identified for Australia, where ‘powers over emergency response to public health crises also primarily reside at the state level, with the federal government having limited authority except for quarantine’,²³ however, Australia made no such Reservation to the IHR (2005).

The discussion here will focus on Understanding 2, which will be referred to as a USA ‘military exemption’ from Article 9 of the IHR (2005). In delineating their understanding of Article 9 the USA Government is making an implicit statement about how their interpretation of this provision is different to the agreed or implied understanding of the other States Parties. Their Understanding applies only to the USA Armed Forces,²⁴ and not to the military forces of any other countries. The effect of the USA Government’s second Understanding is to ‘modify the legal effect of certain provisions’^25. This Understanding does not constitute a mere interpretive declaration; rather, a qualified one with the characteristics of a unilateral reservation as defined by the Vienna Convention.²⁶ Accordingly, the second Understanding to the IHR (2005) will henceforth be considered to exist as a second Reservation.

The Need for a Military Exemption to the IHR (2005)

Clearly the USA Government felt that their international obligations under the IHR (2005), specifically Article 9, might ‘undermine the ability of U.S. Armed Forces to operate effectively in pursuit of U.S. national security interests’.²⁷ To determine the reasoning behind this we must examine the provisions of the IHR (2005) that could foreseeably affect military operations. Only then can there be an appreciation for the apparent requirement for military exemptions of this nature in the negotiation of international treaties more generally.

To reiterate, Article 9 of the IHR (2005) stipulates that ‘States Parties shall, as far as practicable, inform WHO within 24 hours of receipt of evidence of a public health risk identified outside their territory that may cause international disease spread’.²⁸ Such health risks might be indicated through the presence of ‘human cases’,²⁹ the detection of ‘vectors which carry infection or contamination’³⁰ or ‘goods that are contaminated’.³¹ Accordingly, States Parties are required to report to the WHO any event which may constitute a public health event of international concern irrespective of where that event may have occurred. When that event has occurred in the State Party’s country of origin, reporting to the WHO is mandated in Articles 6 and 7 of the IHR (2005). Where Article 9 differs is that the same sorts of reporting obligations exist in territories outside of States Parties’ own sovereign borders.

The military exemption proposed by the USA Government deems that such a requirement may not be ‘practicable’ during military operations. There are several conceivable reasons as to why this might be the case. If, for instance, USA Armed Forces were to be made aware of a reportable event, such as a disease outbreak, whilst conducting clandestine operations in another State’s territory, Article 9 obliges the reporting of such an event to the WHO within 24 hours. This information could reveal the location and, in some instances, the nature of their military operations to the WHO. Under Article 11 of the IHR (2005) the WHO can use the information gained under Article 9 ‘for verification, assessment and assistance purposes’ and can ‘consult with the State Party in whose territory the event is occurring’.³² When information of this nature is obtained from an unusual source, the WHO may ‘maintain the confidentiality of the source’, ‘only where it is duly justified’.³³ Accordingly, there is no way of ensuring the confidentiality of the source of health information provided to the WHO and this may result in sensitive operational information being shared with third parties. These situations are further complicated in coalition military operations where a conflict of interest might arise between allies with contradictory international legal obligations.

Once a report has been made under Article 9, further provisions of the IHR (2005) may automatically come into play. For instance, under Article 13(5), the military force as an instrument and representative of a State Party may be requested by the WHO to assist with a coordinated public health response. This clearly presents an inopportune situation in clandestine operations, but it is easy to conceive of how wholly open military operations could be severely impeded by such a request. A military exemption to Article 9 ensures that military objectives are met in line with military priorities, not public health priorities. It further ensures that military supplies and resources are not unexpectedly reallocated to non-military assignments during the conduct of operations.

There are additional provisions in the IHR (2005) that might pose a threat to or impinge upon the ability of Armed Forces to conduct military operations in accordance with their own priorities. Article 44, for instance, requires that ‘parties undertake to collaborate with each other’ to detect, assess and respond to health events. In times of conflict this may be considered unfeasible by the international community, however, a military exemption to this provision might act to clarify the existence (or absence) of obligations to civilians in host or enemy nations. Does the military, as an instrument and representative of a State Party, have the right not to cooperate on any level with potential adversaries? In conflict zones, health intelligence should be guarded like any other category of intelligence. Indeed, the destabilisation of an adversary’s systems of health governance could be beneficial to conducting operations in some instances. An implicit military exemption from collaborating with and assisting enemy parties during health emergencies may be considered a given by some, but without an explicit military exemption to the IHR (2005) collaboration and assistance are mandated.

Should Australia Follow Suit?

The IHR (2005) was met with few objections upon its adoption by the 58th World Health Assembly. Its provisions are clear and justifiable in meeting the overall objective to protect against global health threats of all origins. Since its entry into force in 2007,³⁴ the IHR (2005) have been invoked by the WHO in four instances to declare a public health emergency of international concern. In 2009, the outbreak of H1N1 avian influenza became the first test of the IHR (2005). In 2014, the Ebola crisis and a resurgence of polio cases were both declared public health emergencies of international concern, and the IHR (2005) was most recently invoked in response to the Zika virus epidemic in South America. While the handling of these emergencies by the WHO has met with some criticism, the IHR (2005) have proven flexible in meeting the demands of dealing with emerging and evolving health threats.

Unlike the Australian Defence Organisation, the USA Department of Defense (DoD) has defined responsibilities in the public health arena. In 1996, the Clinton administration extended the mission of the USA DoD to include support for surveillance and research into emerging diseases around the world.³⁵ The USA Armed Forces Health Surveillance Center has helped to develop a global infectious disease surveillance network, ‘in direct support of the [IHR]’.³⁶ This DoD network is a major contributor to global health preparedness and security, surveillance and response. Further support for the IHR (2005) is provided through the USA Agency for International Development (USAID) that supports public health capacity building ‘efforts throughout Africa and the Pacific’.³⁷ Despite their Reservation regarding the principle of federalism, the USA Government has achieved a great deal in implementing the IHR (2005) at all levels of government, including the DoD. It would appear that the Reservations made by the USA Government have not acted to undermine the overall effectiveness of the IHR (2005) in the USA or abroad.

With respect to their military exemption, ‘[s]ome in the international community have criticized this understanding as a potential loophole that might allow noncompliance’.³⁸ That there is a loophole is the point; it provides the operational manoeuvrability that the USA Armed Forces might have needed to take whether a specific exemption to the IHR (2005) was sought or not. A military exemption exists simply as an open acknowledgement of what is already implicitly understood on the world stage: that a global power such as the USA intends to act in good faith, but cannot make this guarantee in circumstances where their national security interests are at stake. Accordingly, during operational situations, the focus of the Government and the Armed Forces can remain on military priorities and not on attempting to meet all tangential international obligations that are non-essential to the success of the mission.

In making the military exemption overt, the USA maintains the perception of acting in good faith even in military circumstances in which it chooses not to comply with the requirements of the IHR (2005). Without an explicit military exemption, any military forces that do not comply with the requirement to report a health event occurring in areas of operation outside of their territorial borders will be in contravention of Article 9 of the IHR (2005). In the conduct of clandestine operations such a transgression would, of course, not deliberately be made public knowledge and in such cases, there is no direct consequence for non-compliance. But compliance comes in degrees and those particularly contemptuous of treaty law might be inclined to conclude that there are few consequences to non-compliance even when transgressions are made public. While it is true that the IHR (2005) offers little in the way of dispute resolution³⁹ and the WHO has no powers to enforce its provisions or penalise transgressors, contravention of the IHR (2005) may come with considerable diplomatic costs. Under the Vienna Convention, a material breach of a multilateral treaty may render that treaty inoperable either in whole or with respect to the defaulting Party.⁴⁰ It is in each State Parties’ interest that all WHO Member States continue to comply with the IHR (2005) as the only ‘governing framework for global health security’⁴¹ The integrity of an international health surveillance and response system is only as strong as the continued compliance of individual States Parties. Moreover, by contradicting the general principle of ‘good faith’, the act of defaulting on any one international treaty may produce vulnerability in all other international agreements to which the defaulting State is a party. This could have an incalculable destabilising effect on treaty law and international relations more generally.

Conclusion

This article has examined the reasons behind the USA Government’s decision to declare a specific military exemption to Article 9 of the IHR (2005); a treaty that does not specifically pertain to the conduct of military operations. While this resulted in some contempt at the international level, the military exemption simply represents an acknowledgement of the intentions of the USA Government to ensure that USA military operations occur in accordance with USA military and Government priorities, not with the global public health priorities of the WHO. The military exemption therefore affords the USA Armed Forces a level of manoeuvrability in the conduct of operations that might otherwise have been restricted by pressure to comply with international public health obligations. It is too late for the Australian Government to declare a reservation to the IHR (2005). This case study serves to demonstrate that the wholesale accession to international treaties by the Australian Government, even to those treaties that do not appear to be directly related to the conduct of military operations, warrants the careful attention of Defence. Acceding to future multilateral treaties without considering the lodging of Reservations to allow for military exemptions may introduce very real operational vulnerabilities and risk diplomatic relations when our national interests conflict with international obligations. In some cases, it may be advisable to relinquish a slice of our reputation as an obedient global citizen to secure an increased degree of operational manoeuvrability for the ADF.

Endnotes

1. Vienna Convention (1969) Preamble.
2. Vienna Convention (1969) Article 26.
3. International Health Regulations (2005) Article 2.
4. Permanent Mission of the United States of America to the United Nations, “Note Verbale No. 369-06” (2006), available at http://www. who.int/ihr/usa.pdf?ua=1 ^{[accessed 22 June 2016], p. 2.}
5. L. O. Gostin, Global Health Law (2014: Harvard University Press), p. 180.
6. International Health Regulations (2005) Foreword.
7. World Health Organization, “State Parties to the International Health Regulations (2005)” (2016), at http://www.who.int/ihr/legal_issues/states_parties/en/ [accessed 22 June 2016].
8. International Health Regulations (2005) Article 2.
9. International Health Regulations (2005) Article 12.
10. D. P. Fidler, “Military Forces, Global Health, and the International Health Regulations (2005)” (2011) Articles by Maurer Faculty, Paper 1298, p. 120.
11. Vienna Convention (1969) Article 2(d).
12. International Health Regulations (2005) Article 59(1). India also submitted a reservation to the IHR (2005) regarding the handling of yellow fever under the Regulations.
13. International Health Regulations (2005) Articles 62.4(a) and 62.6.
14. International Health Regulations (2005) Articles 62.8 and 62.9.
15. International Health Regulations (2005) Article 62.9.
16. International Health Regulations (2005) Article 62.9.
17. Permanent Mission of the Islamic Republic of Iran to the United Nations, “Note Verbale No. 334-1/355” (2007), available at http://www.who.int/ ihr/Iran_NV_20_April_2007.pdf?ua=1 [accessed 22 June 2016] p. 1.
18. Permanent Mission of the Islamic Republic of Iran to the United Nations, “Note Verbale No. 334-1/355” (2007), available at http://www.who.int/ ihr/Iran_NV_20_April_2007.pdf?ua=1 [accessed 22 June 2016] p. 2.
19. K. Wilson, C. McDougall and R. Upshur, “The New International Health Regulations and the Federalism Dilemma” (2006) (3) 1 PLoS Medicine e1, p. 1.
20. R. Katz and H. Allen, “Domestic Understanding of the Revised International Health Regulations” (2009) 124 Public Health Reports 806, p. 807.
21. K. Wilson, C. McDougall and R. Upshur, “The New International Health Regulations and the Federalism Dilemma” (2006) (3) 1 PLoS Medicine e1, p. 1.
22. M. G. Baker and D. P. Fidler, “Global Public Health Surveillance under New International Health Regulations” (2006) 12 (7) Emerging Infectious Diseases 1058, p. 1063.
23. K. Wilson, C. McDougall and R. Upshur, “The New International Health Regulations and the Federalism Dilemma” (2006) (3) 1 PLoS Medicine e1, p. 2.
24. The U.S. Armed Forces are defined under Title 10 of the United States Code, section 101 (a) (4) to mean “the Army, Navy, Air Force, Marine Corps, and Coast Guard”, inclusive of all reserve components.
25. Vienna Convention (1969) Article 2(d).
26. Vienna Convention (1969) Article 2(d).
27. Permanent Mission of the United States of America to the United Nations, “Note Verbale No. 369-06” (2006), available at http://www. who.int/ihr/usa.pdf?ua=1 [accessed 22 June 2016], p. 2.
28. International Health Regulations (2005) Article 9(2).
29. International Health Regulations (2005) Article 9(2)(a).
30. International Health Regulations (2005) Article 9(2)(b).
31. International Health Regulations (2005) Article 9(2)(c).
32. International Health Regulations (2005) Articles 11(2) and 11(3).
33. International Health Regulations (2005) Article 9(1).
34. The IHR (2005) entered into force on 15 June 2007 for those States Parties that did not lodge a reservation. For the USA, the IHR (2005) entered into force on 18 July 2007.
35. D. P. Fidler, “Military Forces, Global Health, and the International Health Regulations (2005)” (2011) Articles by Maurer Faculty, Paper 1298, p. 119.
36. M. C. Johns and D. L. Blazes, “International Health Regulations (2005) and the U.S. Department of Defense: Building Core Capacities on a Foundation of Partnership and Trust” (2010) 10(54) (Supplement 1), S4.
37. M. C. Johns and D. L. Blazes, “International Health Regulations (2005) and the U.S. Department of Defense: Building Core Capacities on a Foundation of Partnership and Trust” (2010) 10(54) (Supplement 1), S4, p. 5.
38. M. Johns, D. L. Blazes, J. Fernandez et al., “The United States Department of Defense and the International Health Regulations (2005): Perceptions, Pitfalls and Progress Towards Implementation” (2011) 89 Bulletin of the World Health Organization 234, p. 235.
39. International Health Regulations (2005) Article 56.
40. Vienna Convention (1969) Article 60(2).
41. L. O. Gostin and R. Katz, “The International Health Regulations: The Governing Framework for Global Health Security” (2016) 94 (2) Milbank Quarterly 264.