6 October 2014
Global health issues and shared state responsibility? The case of Ebola
The current Ebola outbreak in West Africa is illustrative of a global health issue which requires collective global action. The rapid spread of the virus is alarming health experts. At the time of writing, the number of reported deaths has reached more than 3,338, and the virus could spread even further across borders. States that are most affected are Liberia, Guinea and Sierra Leone, but Ebola cases have also been reported in Nigeria, Senegal, and the Democratic Republic of the Congo.
Calls for concerted action and international assistance
Calls for concerted action to tackle the virus have been many. On 16 September 2014, President Obama called on states to speed up the global response to the current Ebola outbreak in West Africa. He warned that without the quick deployment of health care workers, treatment centres and medical equipment, the disease could result in hundreds of thousands of deaths. President Obama said during a meeting with doctors who had just returned from West Africa, that the world, ‘has the responsibility to act, to step up and to do more. The United States intends to do more.’ This statement is interesting, since it suggests that there is a responsibility resting on the international community, obliging each state to act (and do more than it currently does) in response to the present Ebola outbreak. However, it is doubtful that he referred to a legal obligation.
The calls for cooperation and collective action are warranted since a state alone cannot tackle this global problem. Even though the contribution announced by the United States (US) (deploying 3,000 military personnel – including physicians and nurses – medicine, and equipment to Liberia and Senegal)[1] could make a difference due to its significant scale, health officials considered a coordinated approach from other Western powers crucial in order to bring the virus under control. Jim Yong Kim, president of the World Bank and expert in infectious diseases, said for example that ‘[e]veryone realizes that no one group or one country or one organization is going to be able to tackle this’.
It can be argued that the UN has some sort of responsibility in this matter, which would probably at least entail to hold meetings, call upon states to act, and coordinate relief efforts.[2] The UN indeed appears to have done a lot in last couple of weeks.
On 8 August 2014, the World Health Organization declared the present Ebola outbreak in West Africa ‘a public health emergency of international concern’.[3] During the United Nations (UN) system-wide coordination meeting on 13 August, the UN Secretary-General called on the international community to respond to the shortage of medical staff, protective clothing etc. Furthermore, Ban Ki-moon issued an ‘international rescue call’ for more assistance, and vowed to mobilise the UN to respond to the outbreak, on 9 September. He urged the international community to provide the money needed to stop Ebola transmission in affected countries, and to prevent the further international spread of the virus. Reportedly USD 987.8 million is needed over the next six months for a large scaled response.
The UN Security Council unanimously adopted Resolution 2177(2014) at an emergency meeting on the outbreak in West Africa on 18 September. This Resolution declared the present Ebola outbreak a ‘threat to international peace and security’ in its Preamble.[4] Furthermore, it called on member states to ‘lift general travel and border restrictions’ and ‘provide urgent resources and assistance’. At the meeting, the Secretary-General announced the UN was going to deploy an international emergency health mission called ‘UN Mission for Ebola Emergency Response’ (UNMEER, the first-ever UN emergency health mission) with the aims to: first, stop the outbreak; second, treat the infected; third, ensure essential services; fourth, preserve stability; and fifth, prevent further outbreaks in other states. He added that its effectiveness is dependent on support from the international community. On 22 September, the UN has set up the ‘Ebola Response Multi-Partner Trust Fund’, seeking contributions from member states, but also e.g. businesses and individuals.[5] It also launched a website on the UN system’s global resonse to the Ebola outbreak.
On 19 September, the UN General Assembly underlined its commitment to respond to the outbreak ‘in a timely, effective and coordinated manner’ in Resolution GA/11552 (unanimously adopted). The Mexican representative considered the adoption to be ‘a clear testimony of international cooperation’.
At the ‘High-level Meeting on Response to the Ebola Virus Disease Outbreak’ on 25 September, Ban Ki-moon noted the ‘overwhelming international political momentum for the UN to play a leading role in coordinating the global response’.
Is there a legal obligation resting on states to cooperate in response to an outbreak elsewhere?
The question that arises is whether there exists a legally binding obligation to cooperate in relation to the Ebola crises under international law. Such an obligation might be inferred from the right to health.
General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, elaborating on Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (the right to health) seems to be of importance. It provides in para. 40:
States parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions … to cooperate in providing disaster relief and humanitarian assistance in times of emergency … Each State should contribute to this task to the maximum of its capacities … Moreover, given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard. (emphasis added)[6]
In this specific context, Article 44 dealing with ‘collaboration and assistance’ of the International Health Regulations (2005) provides that:
1. States Parties shall undertake to collaborate with each other, to the extent possible, in: (a) the detection and assessment of, and response to, events as provided under these Regulations; (b) the provision or facilitation of technical cooperation and logistical support, particularly in the development, strengthening and maintenance of the public health capacities required under these Regulations; (c) the mobilization of financial resources to facilitate implementation of their obligations under these Regulations. (emphasis added)
In addition, the Security Council Resolution S/RES/2177 (2014) emphasised in the Preamble that ‘the control of outbreaks of major infectious diseases requires urgent action and greater national, regional and international collaboration … stressing the crucial and immediate need for a coordinated international response’.
Do individual states have obligations?
Another question is whether some states have ‘special obligations’ to help affected states because of their status as for example former colonial power or developed state? Maybe the principle of common but differentiated responsibility applies in the context of global health?[7]
Such a ‘special responsibility’ would not necessarily only have to rest on economically developed states. The New York Times suggests that states with historical or colonial ties have a ‘special obligation’ to help the affected state in need. According to the newspaper, US administration officials urged the United Kingdom (UK) and France, which both have colonial ties to affected states, to come up with stronger responses. Thus far, France has sent USD 13 million to Guinea for medical equipment and the construction of medical centres, and USD 15.5 million and doctors to Ivory Coast and Senegal, both being former French colonies. Troops from the UK, are reportedly headed to its former colony Sierra Leone, in order to build and staff a 63-bed facility near Freetown. Such a ‘special responsibility’ does however not exist under current international law. Only a greater moral responsibility can be argued to exist for certain countries having ties with states that are in need of help.
The current Ebola crisis also shows why it will be difficult to develop such a ‘special responsibility’. There are many tough choices (e.g. which state(s) a state decides to help and which not) that seem hardly possible to be settled by law. Whenever a state helps a certain affected state, and does not help others, or to a lesser extent, this may be critically received. Some health experts for example said that Obama’s plan placed too much focus on Liberia, and not enough on Sierra Leone and Guinea. However, some six months after the start of the outbreak, Liberian authorities continue to be unable to carry out the most basic steps required to stop the spread of Ebola. In addition, President Ellen Johnson Sirleaf has written to President Obama and the leaders of China, Russia, as well as other states, directly asking for help. The focus of the US on Liberia seems justified because, besides Liberia’s historical ties to the US (Liberia was founded by freed US slaves in 1822), it has the highest number of Ebola infections, and it strongly needs help to deal with the problem on the ground.
Besides states having historical or colonial ties to an affected state, do neighbouring states have different or certain specific obligations if an outbreak occurs in an adjacent country? Is there an obligation to be solidary with, and provide assistance to, one’s neighbours? Or what about states in the region? Do they have a different type of responsibility compared to states that are located far away from an outbreak? An example of concerted action may be that West African states and international health organisations have adopted a new common strategy to fight Ebola on 3 July 2014. Member states especially of the region have been called on by the Security Council to ‘facilitate the delivery of assistance, including qualified, specialized and trained personnel and supplies’ at its meeting on 18 September. It is to be noted that the Council explicitly mentioned states in the region. However, also for these types of states an obligation does not seem to exist under international law.
In practice, states such as Brazil, Canada, China, Cuba, Germany, India, Russia and Turkey, which at first sight do not seem to have (historical) ties to the affected states, have showed their solidarity by contributing, mostly by donating money, or sending medical staff, medicines or equipment to the affected states.[8]
Generally, the content of the legal obligations of states is not very clear in this context. Now seems to be the appropriate time to develop legal instruments, or elaborating upon existing ones, as states have shown the political will to assist the affected states in a meaningful way. Hopefully the ‘coalition’ of cooperating states currently involved in the fight against Ebola can effectively deal with this global challenge, without much more loss of lives.
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[1] The US military plan to build 17 treatment centres of 100 beds each in Liberia. Once constructed, the centres would be turned over to Liberia and staffed by local and international health care providers. In addition to the USD 175 million the Obama administration has already spent, an extra USD billion to fight Ebola is possible; see Juliet Elperin, ‘U.S. may spend up to $1 billion fighting Ebola, administration says’, The Washington Post, 16 September 2014.
[2] E.g. David Nabarro (formerly appointed in August as Senior UN System Coordinator for Ebola), was re-assigned to be the Secretary-General’s Special Envoy for Ebola. Anthony Banbury has been appointed as Special Representative and Head of UNMEER.
[3] According to the International Health Regulations (2005) this ‘means an extraordinary event which is determined, as provided in these Regulations: (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response’.
[4] Also Kristen Boon, ‘The UN Security Council Takes up Ebola’, Opinio Juris, 18 September 2014.
[5] Earlier, during the UNSC emergency meeting Mr Ban also called out to non-traditional donors, e.g. businesses, to contribute in certain sectors, for example transport, see ‘UN announces mission to combat Ebola, declares outbreak ‘threat to peace and security’.
[6] Para. 44 of CESCR General Comment No. 14 provides: ‘The Committee also confirms that the following are obligations of comparable priority: [i.e. core obligations mentioned in para. 43] (c) To take measures to prevent, treat and control epidemic and endemic diseases’.
[7] CESCR General Comment No. 14 suggests it does, e.g. para. 39: ‘if they are able to influence … by way of legal or political means … Depending on the availability of resources’; para. 40 (cited above); and para. 45: ‘particularly incumbent on States parties … in a position to assist’.
[8] See also Resolution GA/11552 for information on the contribution of several states.