expansion of the NQS (Annex 1); provision-by-provision analyses of the revised IHR (Annex 2) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) of the World Trade Organization (WTO) (Annex 3) in terms of their potential implications for the expansion of the NQS.
In terms of the expansion of the NQS within the United States, none of the bodies of international law analyzed poses a significant constraint on the federal government’s expansion plans. International law recognizes each state’s sovereign right to take action to protect its public’s health. Expanding the NQS would constitute an exercise of that sovereign right. The areas of international law applicable to the expanded NQS analyzed in this memorandum involve disciplines on how the federal government exercises its sovereign right to protect public health. These disciplines address health measures that the expanded NQS would apply to people, goods (including plants and animals), containers used in international commerce, and means of transportation. The federal government’s strategy to make the NQS more comprehensive and robust in its capabilities to protect U.S. public health will bring the expanded NQS more directly and frequently into contact with these various bodies of international law.
The United States public health system is already subject to the disciplines arising in international trade law (e.g., WTO and the SPS Agreement) and international human rights law, so organizing the expanded NQS to comply with these international legal rules will constitute continued U.S. compliance with its existing obligations under trade and human rights treaties. The most comprehensive set of disciplines the expanded NQS face appear in the revised IHR. The revised IHR will not enter into force for World Health Organization (WHO) member states that accept the new Regulations until 2007 (Article 59.2); but the United States has publicly announced its support for the revised IHR, meaning that the United States is unlikely to reject the revised IHR (Statement for the Record by the Government of the United States of America Concerning the World Health Organization’s Revised International Health Regulations, May 23, 2005 [hereinafter U.S. Statement for the Record]). The revised IHR are radically different from previous versions of the IHR and thus represent a historic international legal development of which the committee should be aware as part of its deliberations.
In connection with possible plans to station U.S. public health personnel and assets in foreign countries as part of the expanded NQS, the memorandum outlines a number of international legal considerations that the committee should review in thinking about the wisdom of “forward deployment” of parts of the expanded NQS. In the context of “forward deployment,” international law is less accommodating to the United States because it would be operating from the sovereign territories of other states, which have superior