The chaos in Libya is also the responsibility of Europe

Posted by:

Wester Karin

In December 2014, the United Nations reported that in the previous months hundreds of civilians had been killed in the struggle between armed militias in Libya, and that the acts of the militias might amount to crimes against humanity. It seems like a déjà vu. In February 2011, a popular uprising started in Libya and was brutally repressed by the regime of Colonel Qadhafi, who was eventually charged with committing crimes against humanity. The UN Security Council decided to authorize the use of military force on humanitarian grounds, in order to protect civilians. The ensuing NATO operation, which lasted from March to October 2011, resulted in the fall of the Qadhafi regime and in the establishment of a transitional government, which pledged full respect for human rights and international law. So, what has gone wrong – and what responsibility does the international community carry?

When Operation Unified Protector came to an end in October 2011, neither the transitional government in Libya nor NATO were keen to continue NATO’s involvement in the country. Just like the Arab League and the African Union, the Libyan opposition had been careful to prevent a ‘foreign occupation force’ on Libyan soil, ever since the start of the uprising. In the fall of 2011, the generally shared view was that it was up to the Libyans themselves to shape their own future. Given the fact that the Libyan population had been living under domestic or foreign oppression for most of the previous century, this did not seem an objectionable thought. A UN mission with a so-called ‘light footprint’ was established, in order to assist the Libyan authorities in building up the country and constructing state institutions. There was no question of installing a peacekeeping force.

In July 2012, the Libyan transitional government, supported by the international community, organized successful national elections. Many of those involved were relatively optimistic about the future of the country. The Libyan post-conflict model, which contrasted sharply with the large-scale interventions in Afghanistan and Iraq, was even mentioned as a possible precedent for future post-conflict situations. However, while the construction of state institutions was already an enormous challenge in the case of Libya, without any civic traditions, creating a viable security sector proved to be a particularly daunting task. As transpired, the Libyan transitional government, as well as the international community, had seriously underestimated the problems in this particular area.

Apart from the fact that Libya had never maintained a well-functioning army under Qadhafi, the manner in which the revolt had been organized in 2011 turned out to have devastating consequences. The National Transitional Council, which was based in eastern Libya, was the political representation of the uprising and succeeded in securing international support for the revolt. However, the actual war was fought by local militias which operated for the most part independently, without much central or even regional coordination. According to estimates, between 100 and 300 militias were operating relatively autonomously in Libya in the course of 2011. Remarkably, this model, of a central political council and decentralized opposition groups, proved to be a successful formula for winning the war. The NATO intervention, as well as the direct foreign support a number of states provided to the insurgents, were of critical importance in order to secure this result.

Yet, after the conflict ended, many militias, especially the most experienced and battle-hardened militias which had fought prolonged battles in Misrata and the Nafusa Mountains, refused to hand in their arms and recognize a government they felt no connection with. This refusal was partially fueled by historically grown, regional divides. Since the transitional government had no professional national army, the country was quickly divided in different territories which were de facto controlled by non-state armed groups. Efforts to demobilize militias and integrate them in national armed forces yielded few results. The model which had been successful in order to win the war, was showing to be disastrous to keep the peace.

As a consequence, over the last two years Libya has been experiencing an ever deteriorating spiral of violence, which has resulted in a state of chaos, with two governments and two parliaments, each having their own armed militia; one based in Tripoli, and the other one in the city of Tobruk. The division of the country, largely along the lines of secular (Sunni) groups on the one hand, and Islamist factions on the other, does not only affect the Libyan population, but also has devastating consequences for the surrounding region. The enormous arsenals of arms, the ease with which criminal organizations and fundamentalist groups are able to operate, the porous borders and the lack of government institutions which are able to exercise effective control over the state’s territory, have led to a state of lawlessness. This should not only be of great concern to Libya’s direct neighbors, such as Egypt and Tunisia, but also to the countries in Europe.

In addition, the international community, especially the states who contributed to the intervention in 2011, should realize it bears a share of responsibility for the current situation. This does not mean that the intervention in 2011 should not have happened; but the international community seems to have been largely disregarding the situation which has been evolving ever since. Given the deeply rooted problems of the security sector in Libya, the mediation efforts currently being undertaken by Bernardino León, the Special Representative of the UN Secretary-General for Libya, can barely provide a sustainable solution. Even if the talks yield some results, inevitably additional measures – such as a peacekeeping force – will have to be considered in order to monitor the agreements, and to assist the legitimate government in establishing effective control over the country’s territory.

In August 2014, U.S. President Obama stated in an interview with New York Times columnist Thomas Friedman that he absolutely believed that the decision to intervene in Libya in 2011 to prevent a massacre had been the right thing to do. However, he immediately added that doing so without making a much more robust effort to support Libya’s democratic transition, may be his biggest foreign policy regret thus far. ‘Do we have an answer for the day after?’ was the crucial question, according to Obama. Let’s hope that European leaders have come to similar conclusions – and that they will muster the political will to address the situation in Libya before it spins completely out of control; in the interest of the Libyan population as well as the stability of the region – including Europe itself.

 

The Ebola crisis: challenges for Global Health Law

 Posted by: Toebes Brigit

Cross-posted on the Global Health Law Groningen Blog

The recent Ebola crisis has caused approximately 20.000 deaths so far. Compared to other global health crises, including the deaths caused by armed conflicts and chronic diseases, this is still a small amount. Yet, from a global and domestic health law and governance perspective, this crisis raises a number of vital questions and challenges, which were also addressed during a recent SHARES debate organised by the University of Amsterdam. It reveals a lack of good governance and leadership at both domestic and international levels. It challenges us to ask the questions: what went wrong, who is responsible, and for what?

This contribution to our new blog ‘Global Health Law Groningen’ looks at these questions from the perspective of international or global health law. A range of international legal standards are relevant in relation to the Ebola crisis: the International Health Regulations of the World Health Organization (WHO), Resolution 2177 of the United Nations Security Council, the notion of the ‘responsibility to protect’ under international law, international human rights law, medical-ethical standards, and possibly international humanitarian law.

Looking at these standards in conjunction with each other, we can say that international health law has a number of important things to say about the current Ebola crisis. It identifies the responsible actors and it stipulates a number of concrete obligations for each of these actors. More precisely, nations where the outbreaks have occurred are identified as the primary responsible actors, with the international community and individual ‘foreign’ states as secondary duty holders, and the WHO as the primary international governing body in the health field. Potentially also, non-state actors such as civil society organisations, humanitarian aid organisations, and the pharmaceutical industry have (moral) duties to comply with the standards set in international law. This posting identifies the obligations incumbent on each of these actors.

Who has the primary duty under international law to respond to the Ebola outbreak?

From the perspective of international law, a discussion about responsibilities needs to begin with those of the Affected States (Guinea, Sierra Leone and Liberia) as the primary duty holders under international law.

Human rights law provides an important fundament for this analysis. As asserted by Coomans, the current Ebola crisis not only constitutes a public health emergency, but also a serious human rights crisis. The affected countries have ratified at least thirteen human rights treaties, based on which they are responsible for realising economic, social and cultural rights, as well as civil and political rights to everyone residing on their territory. Based on these treaties, States carry the primary responsibility for the protection of the well-being and dignity of their population.

This approach is in line with the so-called ‘responsibility to protect’ (R2P) under international law and more generally as defined by a range of scholars and subsequently endorsed by General Assembly Resolution 2177 (2005). While the R2P is primarily intended as a response to war crimes, genocide and crimes against humanity, Moore and others have argued that it also applies to situations of widespread poverty, malnutrition and outbreaks of infectious diseases, such as Ebola. Based on this approach, the State has the primary responsibility to protect its population against the threat caused by the Ebola crisis.

Affected States: Have they taken sufficient measures to realise the right to health for their population?

Based on the ‘right to health’ as an economic and social human right, the affected countries have a duty to ensure access to healthcare services and other health-related services to their population (including safe drinking water, sanitation, and health-related information). This also includes the duty to ensure that there is a properly functioning health system and good health infrastructure that is able to respond to foreseeable threats. Reports on the Ebola crisis have made it clear that these were lacking altogether in Guinea, Sierra Leone and Liberia (while Mali and Nigeria were better able to cope with the outbreaks). In addition, as pointed out by Gostin, the failure to build health-system capacity not only violates the right to health, but also the International Health Regulations, which require countries to develop capabilities to detect, assess, report, and respond to global health emergencies.

Admittedly, the health systems of these affected countries, which rank lowest in human development, have been weakened by civil strife. There is an overall lack of financial and human resources to maintain a properly functioning health system. Human rights law allows countries to realise the right to health ‘progressively’ and ‘to the maximum of a State’s available resources’ in order to take into account varying levels of development (see Article 2(1) of the International Covenant on Economic, Social and Cultural Rights, ICESCR). This gives the affected countries the possibility to assert that under the current circumstances, they have invested the ‘maximum of their available resources’ in the Ebola crisis and that overall, they can only do very little. Nonetheless, international human rights law also stipulates that there is a certain minimum threshold below which no government should fall. On the basis of this obligation to provide ‘minimum core services’, there is an ongoing duty to ensure access to basic health services under all circumstances, irrespective of a State’s available resources. In light of this framework the question arises: have these countries taken sufficient measures to realise the right to health of their population? Have they realized the ‘bare minimum’? According to World Bank statistics, in 2012 Guinea spent only 6.3 per cent of its overall governmental budget on health, compared to 12.3 per cent in the Netherlands. Hence the question arises: could Guinea have done more? Should it increase health expenditure to the detriment of other expenses such as, for example, expenditures on military defence?

In addition to insufficient spending, generally a lot of money is wasted through inefficiency and corruption. Transparency International’s 2006 report reveals that health sectors are among the most corrupt sectors of all state sectors. This, too, could potentially be identified as a violation of human rights: money destined for the health sector that ends up where it does not belong, potentially violates people’s right to health services.

However, these counties are not the only ones to blame: as argued by Polman, over the course of the past decennia they become very dependent on aid. Donor and aid organisations often operate independently, disconnected from the governments of the countries where they operate. As such, parallel health systems have come to existence that carry out their tasks alongside governments. In such settings governments are side-lined and little is done by the aid organisations to enable the domestic governments to build proper health systems.

In the affected countries, there is also a structural lack of medical personnel. In this respect, the ongoing ‘brain drain’ of doctors and nurses from these countries to countries where they have better career prospects is a point of serious concern. It is difficult to establish who is responsible for halting this brain drain, but surely both the sending and the receiving States are complicit in this development, which has dramatic effects on health systems of the affected countries.

In addition to economic and social rights, States have to respect so-called civil and political human rights, including the right to life, the right to liberty and freedom of movement, as well as patients’ rights including the right to privacy, the right to physical integrity and the right to health-related information (which embraces informed consent and confidentiality). When such rights are limited or derogated from, the ‘Siracusa Principles’ can offer guidance as to the conditions under which this can be done. A derogation in a public emergency requires a notification to the Security Council by the state concerned (which the Affected States have not issued). It is important to note that a derogation has the far-reaching consequence that rights, including those of privacy and physical integrity, can be set aside completely. This can lead to situations where the rights of patients are being altogether ignored.

The Affected States have invoked several forms of quarantine, sometimes overly broad and unnecessary. And at some point, the Ebola crisis became ‘militarised’: the military was employed to control the disease by imposing road blockades and travel restrictions, thus impeding people from travelling to work and securing their income, access to food and other needs. Human Rights Watch (HRW) has pointed out that the measures imposed during this epidemic have frequently not met the requirements of legality, evidence based necessity, and proportionality. HRW has suggested that it is more effective to ensure that people have sufficient information over the spread of the disease and to ensure that communities receive the necessary care and food support. Thus, from a human rights perspective, it is important to take into account the rights to information, food, water and sanitation when a crisis like this occurs.

What is the role of the World Health Organization, the most important intergovernmental organisation in the field of global health?

The WHO has been criticised widely for failing to address the recent Ebola crisis in a timely and effective manner. While it was informed of the outbreak in March 2014, it took until the 8th of August 2014 before it declared the epidemic a ‘public health emergency of international concern’ under the International Health Regulations.

Meanwhile, the organisation Médecins sans Frontières played an important role in filling the gap and in drawing attention to the matter, and a Resolution of the UN Security Council (2177/2014) was needed to make it clear to the world that the outbreak in Africa constituted a threat to international peace and security, and to establish the first ever UN emergency health mission (UNMEER). It has been argued that the WHO, as the most important intergovernmental organisation in the field of global health, should have played a key role in this crisis. By downplaying the situation and by not taking timely action, it did not deliver what it should have.

However, it should also be noted that the organisation lacks the financial capacity and the human resources to address this problem effectively. While it receives only limited funding from Member States, a lot of the donated money is earmarked, as a result of which the WHO only controls 30 per cent of its budget (see Gostin). The Economist reveals that the regional organisations of the WHO, especially the ones in Africa, lack competence and report mostly to local governments rather than to the WHO directly. In terms of overall coordination the WHO is also challenged by myriads of aid and donor organisations employed in the field, and the lack of coordination between these organisations.

The WHO’s International Health Regulations give the WHO’s Director-General the authority to determine whether an event constitutes a public health emergency of international concern and to issue ‘temporary recommendations’ of urgent measures to prevent or control the international spread of diseases. However, these recommendations are not binding, and do not give the WHO the tools to sanction States in case of non-compliance.

What are the duties of the international community and individual States in the wake of the Ebola epidemic?

Based on Article 2(1) ICESCR, State parties should realise the rights in the Covenant ‘individually and through international assistance and co-operation, especially economic and technical’. This provision is increasingly interpreted as an ‘extraterritorial’ obligation on the part of the international community and individual States to provide international assistance and co-operation to States that are in need of support. As mentioned, States only contribute a limited amount to the WHO; this amount could be increased and there are also voices arguing in favour of the establishment of an ‘International Health Systems Fund’ within the WHO that would ensure that sufficient funding is established so as to deal with both emergency responses and health-system development.

This international ‘duty to aid’ under human rights law is to some extent congruent with the ‘responsibility to protect’ (R2P) that was mentioned above. Based on the responsibility to protect the international community has a duty to assist States in meeting their obligations under international law, and to respond in a timely manner when a State is manifestly unable to provide the necessary protection to its population. Based on this concept, there has been a call for a coordinated global public health intervention (see also UNMEER).

Do non-State actors have duties under global health law?

Donor and aid organisations

Donor and aid organisations, as non-state actors in the field, are not directly bound by the standards under international or global health law. However it provides an important framework, not only for their own actions but also because health workers are often the first to detect human rights violations by other actors. It is also important to stress that healthcare providers are bound by the medical-ethical standards that have been adopted in the context of their profession, including the duty of care and the principles of confidentiality and informed consent.

From a governance perspective, it is important for these organisations to see their role as merely complementary to the overall responsibility of domestic governments. While it is extremely helpful that they are present when States fail to respond effectively, they should avoid creating parallel states, thus making domestic governments unnecessary and rendering them powerless.

Pharmaceutical industry

As non-state actors, pharmaceutical companies are not directly bound by the human rights standards. Yet, it is increasingly argued that given the influence and power of their exercise over the health and overall well-being of individuals, they have at least moral duties to comply with human rights standards, including the right to health. The pharmaceutical industry has received much criticism over the past decennia for failing to produce affordable drugs for developing countries. In the context of the Ebola crisis, the question arises why a vaccine has not been developed. Here it has been argued that the pharmaceutical industry is more keen on developing medicines for so-called ‘profitable patients’, in other words patients in the developed world.

Book review: James Crawford, State Responsibility – The General Part (CUP, 2013)

Posted by: Jean d’Aspremont

Forthcoming in International and Comparative Law Quarterly (2015)

Jean d’Aspremont[1]

State responsibility is one of these foundational doctrines that give shape to international law as much as it gives it teeth. State responsibility provides a conceptual framework through which inadmissible behaviours are constructed, captured and acknowledged while also endowing international law with reactionary mechanisms against those behaviours deemed unacceptable. In that sense, state responsibility is both a screen where standards about what is admissible at the international level are projected as much a parapet from which respect of those standards can be defended. Needless to say that such a twofold functional view of state responsibility is all but ontological. It is the result of certain choices made by international lawyers as well as the socio-historical circumstances in which such choices were made. It will not come as a surprise that agents and socio-historical factors have been changing throughout centuries of legal thinking, thereby bringing about severe fluctuations as to the way in which state responsibility is conceptualised as well as to the function it is due to perform. It obviously is impossible to trace and establish precisely the conceptual and functional variations that affected the development of the law of state responsibility over the last centuries. Indeed, international lawyers have little at their disposal to reconstruct the history of state responsibility, for they only have inherited a few fragments of thoughts which they are bound to read and interpret anachronistically – that is through the cognitive categories of their time.[2] The imprecision and anachronistic readings to which international lawyers are condemned when they think about the agents and socio-historical factors that have informed (and led to) the creation of the contemporary doctrine of state responsibility does however not forestall the acquisition of self-awareness for those structuring parameters. On the contrary, seeking to acquire awareness for some of them, albeit anachronistically, has become a prerequisite of what is taken as serious international legal scholarship in the 21st century.

The foregoing helps us appreciate where James Crawford’s State Responsibility – The General Part (hereafter SRGP) stands out and distinguishes itself from traditional treatises on foundational doctrines of international law.

Indeed, this impressive work does not only constitute the most authoritative and extensive treatise on the rules and practices pertaining to state responsibility. It also provides some welcome and unheard insights on the agents and the socio-historical context that contributed to the current mould of the contemporary doctrine of state responsibility. If anything, SRGP is much more than a “black letter law” presentation of the state-of-the-art. The situated dimension of the presentation gives the readers – be them practitioners or researchers – insights as to the (agenda behind) conceptual and paradigmatic choices that informed the coalescence of state responsibility as is presented in SRGP. The author’s awareness of the impact of socio-historical contexts on the design of doctrines is at its best when he defends the rise of the doctrine of responsibility as an autonomous legal category that should be seen as a post-World War 1 product. In this respect, he specifically argues that state responsibility is not a bargain between states but a “juridical construction” whose design must be understood as a “response to the ruinous world of the Great War, and a recall of the practice of responsibility as applied in the last decades of the nineteenth century, from the Alabama arbitration to the Venezuela claims and the two Hague peace conferences”.[3]

Needless to say that in sharing his self-awareness for the influence of agents and the socio-historical context on the design of the doctrine of state responsibility, James Crawford simultaneously provides the reader with an unprecedented glimpse on the agenda and the conceptual choices he himself sought to promote during his stint as Special Rapporteur of the International Law Commission (hereafter the ILC). Indeed, what James Crawford lets the reader see of his self-awareness is itself a product of the paramount role he played in the design of those rules and practices. It is not necessary to recall that the author of SRGP is one of these agents whose conceptual choices proved very influential in shaping (and completing the codification) of the contemporary doctrine of state responsibility. What matters here is that SRGP shows what James Crawford thought of the work of the ancestors and masters in the field as well as the parts of this heritage that should be salvaged. In that sense, SRGP can also be read as operating a “synthesis”[4] of those accounts of the conceptual and functional variations of the law of responsibility that vindicate the best the author’s vision of the doctrine.

The vindicating dimension of the historical account provided in Part I of SRGP inevitably raises the question of whether its author still is in need to defend his vision of state responsibility. After all, his influence on the codification process, on the judicial practice, as well as the scholarship on responsibility is unequalled. And yet, according to the author of these lines, codification processes – especially of secondary rules of international law – should be understood as a dialectic and mutually reinforcing exchange between private scholarly reflection and public deliberative institutional dynamics geared towards legitimacy and acceptance.[5] According to such an understanding, the completion of a set of articles like the Articles on Responsibility of States for Internationally Wrongful Acts[6] (hereafter ARSIWA) does not terminate the codification process. It only marks the conferral upon the codified rules of public law-making the certification necessary to endow the secondary rules concerned with authority, which is indispensable for their global acceptance by law-applying authorities. In that context, James Crawford’s SRGP can be understood as another step in the dialectical process to stabilise the doctrine of state responsibility around the paradigmatic choices which prevailed at the ILC. Said differently, SRGP is one more exercise of persuasion to consolidate the imposition of a given approach to the law of responsibility by supplementing the ARSIWA and the official commentary by a highly authoritative scholarly study. SRGP constitutes James Crawford’s capstone to almost two decades of efforts to persuade governmental and academic audiences.

If SRGP adds the final touch to its author’s own approach to state responsibility,it is no coincidence that its structure as well as its overall conceptual framework reflects with precision the paradigmatic choices behind the ARSIWA. Indeed, a quick glance suffices to show that the book espouses the ARISWA’s paradigmatic distinctions between unlawfulness and wrongfulness or between determination of responsibility and the content of responsibility. In the same vein, SRGP vindicates the claim of a unity of the regime of responsibility, which informs the codification exercises of the ILC,[7] by approaching questions of responsibility of international organisations from the vantage point of collective and ancillary responsibility.[8] It is as if, according to SRGP, the regime of the responsibility of states and that of the responsibility of international organisations and of their member states for acts of the international organisations were part of the same regime. The consolidating virtue of SRGP also manifests itself in the author’s demonstration of the resilience of the doctrine as conceptualised in front of new phenomena – like questions of shared responsibility.[9]

It could have been expected that SRGP would not only be an attempt to consolidate the vision found in the ARSIWA, but that it would also be a platform for its author to push forward those interpretations and conceptual choices which fail to be supported by the ILC at the time. In this respect, one inevitably thinks of the famous controversy that swirled around the entitlement of non-injured states to take countermeasures in the general interest, provided that they could at least demonstrate a universal legal injury. It is well-known that in the light of the opposition within the ILC, James Crawford, an avowed proponent of that option, secured the inclusion of a saving clause, thereby leaving the resolution of the matter to further developments in international legal scholarship and practice.[10] It is remarkable that the commentary that accompanies the saving clause provided an account of the practice which, rather than supporting the open-endedness of the ARSIWA, came to buttress the entitlement of non-injured states to take countermeasures in the general interest.[11] Interestingly, SRGP does not perpetuate the ambiguity of the commentary nor does it seek to engage with that debate any further, subject to the question of the ability of injured states to call for assistance to seek redress for the breach.[12] SRGP limits itself to recall the pitted positions in the debate on Article 54 ARSIWA.[13] What is more, SRGP even seems to stick to (and vindicate) the rationale of the saving clause, thereby explicitly backing away from the support for countermeasures in the general interest that was perceptible in the commentary to Article 54.[14] It is as if the author of SRGP had come to terms with the impossibility of imposing the idea of countermeasures in the general interest and retreated from the veiled activism that infused the commentary.

The self-restraint that characterises SRGP should certainly not be bemoaned. It can even prove instrumental in the authority of the account of the doctrine of state responsibility that is offered by SRGP. In all respects, the exercise is carried out with brilliance and includes not only knowledge of the agents and socio-historical forces that influence codification processes, but also of what it takes to persuade an audience and impose one’s understanding of a doctrine. There is no doubt that this exhaustive, precise and rigorous exposé of all the dimensions of the doctrine of state responsibility will establish itself as a holy writ in terms of state responsibility.

This short review ends by shedding light on two aspects of the SRGP that could perplex some informed readers. A first remark must be formulated in connection with the rich historical overview provided by SRGP. In this respect, it is somewhat startling that Dionisio Anzilotti is not given a more prominent role. In the dominant opinion in the mainstream literature Anzilotti is seen as the great mastermind behind the contemporary doctrine of state responsibility following Ago’s extensive reliance on Anzilotti’s constructions.[15] In contrast, the author of SRGP offers a much more nuanced image. For James Crawford, the distinction between the breach of a substantive rule and responsibility for its breach dates back to Wheaton whose paradigmatic choices left an important imprint on the contemporary doctrine of responsibility.[16] In the same vein, James Crawford claims that it is Heffter’s Droit International Public de L’Europe (1857) that puts forward the notion of wrongful act (fait illicite) for the very fist time.[17] By the account made by James Crawford, the work of Anzillotti is, at best, a continuation of these ancestors, his main contribution was to elevate state responsibility as a distinct field and to distinguish between natural causality and normative causality (imputation).[18] SRGP seems to go as far as claiming that the work of Eagleton surpasses that of Anzilotti.[19] Such a departure from the mainstream understanding of the cardinal influence of Anzilotti is certainly refreshing. This treatment of the Italian master however remains question-begging. Indeed, it reinforces the above mentioned portrayal by James Crawford of the ARSIWA as synthesising a variety of heritages rather than having a clear linear paternity and a limited number of forebears.

Equally surprising is probably the way in which the charges raised against the conceptual and functional choices made by the ILC are addressed by the author of SRGP. It is certainly remarkable that, despite being himself one of the architects of the doctrine, James Crawford has no qualms confronting the criticisms that have been leveled against the current doctrine which he contributed to design.[20] But it is simultaneously astonishing that the account of the scholarly criticisms provided by SRGP leave out the well-known – and probably the most compelling – objections that were raised against the fundamental paradigmatic choices behind the ASRIWA. The criticisms that are discussed in the book only pertain to the format that has been given to the main rules[21] or their interpretive relevance.[22] Nothing is said of Philip Allott’s famous argument that the paradigmatic choices behind the ASRIWA affirm rather than constrain power and provide a convenient veil behind which morally responsible person can take shelter.[23] The same can be said about the silence of SRGP about Vaughan Lowe’s objection against the idea of precluding wrongfulness.[24] It is not that in addressing those criticisms SRGP should have revisited the paradigmatic choices that have informed the ASRIWA one more time. These choices have prevailed as a matter of social acceptance within governmental and academic audiences and it would be of no avail to reopen these debates. Yet, SRGP was maybe the ultimate opportunity to clinch once and for good the major controversies still affecting some of the paradigmatic choices behind the ASRIWA and which, to this date, have remained unaddressed.

 

[1] Professor of Public International Law, University of Manchester and Professor of International Legal Theory, University of Amsterdam. Personal SSRN page: http://www.ssrn.com/author=736816. The author wishes to thank Ilias Plakokefalos and Christiane Ahlborn for their comments on an earlier version. The usual disclaimers apply.

[2] M. Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’ (2013) 27 Temple Journal of International and Comparative Law 215.

[3] J. Crawford, State Responsibility – The General Part (Cambridge University Press, 2013),p. 26.

[4] Ibid., section 2.1 of Part I speaks about the “modern synthesis” when presenting the ILC codification process.

[5] The argument could be made that given that the ILC has codified the most important fragment of the systemic rules of the international legal order, this public process of the production of secondary rules through the ILC is coming to an end. I have already made that argument in J. d’Aspremont, ‘Les travaux de la Commission du droit international relatifs aux actes unilatéraux des États’ (2005) 109 RGDIP 163.

[6] Articles on Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001/II(2) (ARSIWA).

[7] See C. Ahlborn, ‘The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations – An Appraisal of the “Copy-Paste Approach”’ – (2012) 9(1) International Organizations Law Review 53-66; Amsterdam Law School Research Paper No. 2012-98; Amsterdam Center for International Law No. 2012-14; SHARES Research Paper 13 (2012). Available at SSRN: http://ssrn.com/abstract=2168628.

[8] See Crawford, State Responsibility – The General Part, n. 3,Part IV.

[9] Ibid.,chapter 10 (pp. 325-358) and chapter 12 (pp. 395-430).

[10] See Article 54 ARSIWA; J. Crawford, ‘third report on state responsibility’, UN Doc. A/CN.4/507 and Add. 1-4 (2000), at 102-4.

[11] ARSIWA Commentary,ILC Yearbook 2001/II(2), Commentary to Article 54, paras. 3-6.

[12] Crawford, State Responsibility – The General Part, n. 3,at 704.

[13] Ibid., at 704-705.

[14] Ibid., at 706.

[15] G. Nolte, ‘From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-state Relations’ (2002) 13 EJIL 1083.

[16] Crawford, State Responsibility – The General Part, n. 3, at 20-21.

[17] Ibid., at 21.

[18] Ibid., at 23.

[19] Ibid.,at 24.

[20] Ibid.,at 85-92.

[21] See D. Caron, ‘The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority’ (2002) 96 AJIL 857-873, at 867. See Crawford, State Responsibility – The General Part, n. 3, pp. 87-88.

[22] See US – Antidumping and Countervailing Duties, WT/DS379/R, 22 October 2010, para. 8.87ff, and discussion in Crawford, State Responsibility – The General Part, n. 3, on p. 89.

[23] P. Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal 1-26.

[24] V. Lowe, ‘Precluding Wrongfulness or Responsibility: A Plea for Excuses’ (1999) 10 EJIL 405-411.

Global health issues and shared state responsibility? The case of Ebola

Posted by: Schechinger Jessica

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.

Dutch Court holds the Netherlands responsible for 300 Srebrenica deaths, and sets limits to future claims

 Posted by: Bérénice Boutin

On 16 July 2014, the District Court of The Hague issued a decision holding the Dutch State responsible with regards to the death of about 300 men, who were killed following their eviction from a compound near Srebrenica where Dutch peacekeepers of UNPROFOR (Dutchbat) were stationed before evacuating it in July 1995.

The claims were brought by the relatives of ten victims as well as the association ‘Mothers of Srebrenica’.

This association had previously brought claims against the United Nations (UN) before Dutch Courts and the European Court of Human Rights, which had been rejected on the ground of immunity of the UN. Unable to reach the responsibility of the international organization, the victims turned to the contributing State.

The decision of the District Court comes after two decisions of the Dutch Supreme Court from September 2013, which held the Netherlands responsible with regards to the deaths of three men following their eviction from the compound (cases of Nuhanovic and Mustafic). In these decisions, the Supreme Court had insisted that the responsibility of the Netherlands for these three deaths was tied to the specific circumstances of the cases, leaving open the question of whether and to what extent the Netherlands could be responsible for more deaths. In its ruling, which coincides with the 19th anniversary of the Srebrenica massacre, the District Court determined the limits of the responsibility of the Netherlands in relation to the events.

As in the cases of Nuhanovic and Mustafic, the claims concerned individuals who fled the city of Srebrenica after its fall, and took refuge in and around a nearby compound where Dutchbat had retreated. The District Court relied on these previous decisions and adopted a similar reasoning to attribute the conduct of Dutchbat to the Dutch State. It confirmed that the test of effective control as formulated in Article 7 ARIO was applicable to the question of attribution (para 4.33). Like the Supreme Court, the District Court insisted that after the fall of Srebrenica and the Dutch decision to withdraw, the situation differed from normal peacekeeping (para 4.80), and concluded that ‘during the transitional period the State did have effective control’ over Dutchbat (para 4.87).

The claims were formally brought not only against the Netherlands but also against the UN, which did not appear before the Court. It is on account of accepting as established that dual attribution of the same conduct to the UN and a contributing State was possible that the District Court considered, in line with the Supreme Court’s decisions, that it did ‘not need to examine whether the UN also had effective control over Dutchbat’s actions that form part of the accusations’ (para 4.45). This interpretation in terms of independent non-exclusive responsibility seems to imply that the possibility that the UN shares responsibility for the conduct does not affect (or diminish) the responsibility of the State.

An interesting aspect of the District Court’s decision is that it determined the limits of attribution to the State of Dutchbat conduct in Srebrenica. It did so on three grounds:

para 4.87. The foregoing facts and circumstances lead the District Court to conclude that during the transitional period the State did have effective control over providing humanitarian assistance to and preparation of Dutchbat’s evacuation of the refugees in the mini safe area. This action therefore on the part of Dutchbat may be attributed to the State. Such effective control was limited to this and did not spread to Dutchbat’s involvement with the stream of refugees that prior to commencement of the transitional period moved during the course of the afternoon from the town of Srebrenica to the mini safe area. Such effective control was also not related to refugees outside the mini safe area or to Dutchbat’s actions outside the mini safe area e.g. the abandonment of observation posts after the fall of Srebrenica.

First, effective control was in the hands of the State only during the transitional period and not prior to it. Second, effective control only extended to conduct occurring within what the Court referred to as a ‘mini safe area’. And third, effective control was only exercised over conduct relating to ‘providing humanitarian assistance and preparing the evacuation of the refugees’ (para 4.110).

The ‘mini safe area’ was the compound in which the Dutchbat was stationed and ‘the area in the vicinity to the south of the compound on both sides of a road where inter alia a number of factory hallways and a bus depot were located’ (para 4.204), where individuals had sought refuge. Accordingly, the State had no effective control over the fate of civilians who fled to the woods after the fall of Srebrenica, nor was it responsible for failure to warn them of the risks of killings.

The District Court further limited the responsibility of the Netherlands for the conduct of Dutchbat at the level of applicable primary obligations. It held that the Netherlands had jurisdiction in the mini safe area, and therefore was bound by the human rights provisions of the ECHR and ICCPR, but only within the compound itself, and during the transition period.

para 4.161. The foregoing leads the District Court to the conclusion that by means of Dutchbat the State was only able to supervise observance of the human rights anchored in the ECHR and ICCPR vis­-à-­vis those persons who as of the fall of Srebrenica were in the compound. The State was not able to do this for the populace of the safe area prior to the fall of Srebrenica and even less after that vis-­à-­vis the refugees in the mini safe area that lay beyond the compound or beyond the mini safe area. This assessment is confirmed in the conclusion of the Supreme Court in its profuse deliberations in the Mustafić and Nuhanović cases namely that after the fall of Srebrenica the State exercised jurisdiction in the sense in which that is understood by the ECHR and ICCPR at the compound.

Accordingly, the Netherlands could only bear responsibility with regards to the death of civilians sheltered within the compound, of which it was ‘fully in control’ (para 4.332), and not for events which happened beyond its control.

Finally, the Court limited the responsibility of the Netherlands to the eviction of men, for whom there was a serious risk of being killed or abused upon leaving the mini safe area, and from the moment that this risk was known by Dutchbat. Indeed, as a matter of causality, injuries suffered by women or by men who left the compound before the serious risk of genocide was known could not be attached to the eviction by Dutchbat. According to the District Court, it is only from the end of the afternoon of 13 July 1995 that Dutchbat was aware of ‘a serious risk of genocide of the men who had been carried off from the mini safe area’ (para 4.257).

The Court estimated that 20 000 to 25 000 civilians sought refuge in the mini safe area, 5 000 of which were accommodated within the compound. The majority of them consisted of women, children and elderly. It is estimated that around 2 000 men were in the mini safe area, 300 of them were within the compound (paras 4.205-4.207). The District Court was thereby able to cut the line to determine the extent of Dutch responsibility with regards to Srebrenica, holding the Netherlands responsible for the deaths of these 300 men which had taken refuge within the compound while the Netherlands was exercising effective control over its troops, and were evicted despite Dutchbat’s knowledge of a serious risk of them being killed (para 4.338).

As in the previous cases of Nuhanovic and Mustafic, the Netherlands were not held responsible for failing to prevent genocide, but for failing to protect a limited number of individuals under their care.