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.

____________________________________________________________

[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.

A shared obligation to negotiate (and achieve?) nuclear disarmament

 Posted by: Nedeski Nataša

Every year since the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the UN General Assembly has adopted by a large majority a follow-up resolution. Each resolution reiterates that ‘the continuing existence of nuclear weapons poses a threat to humanity and all life on Earth’, and underlines ‘the unanimous conclusion of the International Court of Justice that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’. The ICJ derived this obligation from Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which provides that

[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

On 24 April 2014 the Republic of the Marshall Islands (RMI) instituted legal proceedings before the ICJ against nine nuclear weapons possessing states: France, India, Pakistan, the United Kingdom, the United States, Israel, China, Russia and North Korea. The Application states that their failure to pursue and conclude negotiations leading to complete nuclear disarmament amounts to a continuing breach of the obligations enshrined in Article VI NPT (to which five of these states are parties), as well as of identical obligations that exist separately under customary international law. Only Pakistan, the UK and India have accepted the compulsory jurisdiction of the ICJ (albeit with several reservations); the remaining six states have been requested to accept the jurisdiction of the Court.

Assuming that the potential barriers to jurisdiction and admissibility would be overcome, the initiation of these proceedings calls for some reflection on the substantive content of the shared obligation(s) arising from Article VI NPT (and, if they indeed exist, identical obligations under customary international law). As the total elimination of nuclear weapons cannot be achieved by any state in isolation, Article VI NPT requires all states parties to take part in overall disarmament efforts. But while it is clear that nuclear disarmament is a goal that can only be achieved through the combined action of all states, it remains uncertain what action is legally required of them. There exist a variety of conflicting views as to ‘what state behaviour is required to meet the nuclear disarmament obligation’.[1] Arguably, this lack of clarity has contributed to the overall failure of nuclear weapon states to take concrete steps towards the common goal of nuclear disarmament.

It has been argued that Article VI NPT ‘merely’ gives rise to an obligation to negotiate in good faith – a pactum de negotiando – which obliges individual duty-bearers to make a genuine effort towards coming to an agreement, but ‘does not imply an obligation to reach an agreement’.[2] However, in its Nuclear Weapons Advisory Opinion the ICJ has held that the legal import of Article VI NPT ‘goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith’[3]. It subsequently qualified Article VI NPT as giving rise to ‘a two-fold obligation to pursue and conclude negotiations’.[4] These passages have been used to support the argument that Article VI NPT gives rise to a pactum de contrahendo – an obligation of states parties to conclude an international agreement on complete nuclear disarmament.

The difference between these two interpretations of Article VI NPT is far from negligible. An obligation to negotiate in good faith is generally considered to be an obligation of conduct, which entails that each duty-bearer can independently fulfil or breach its obligation by conducting or failing to conduct negotiations in good faith. It would be perfectly possible for one duty-bearer to fulfil its obligation by negotiating in good faith whereas another breaches its obligation by failing to do so (though how a state may demonstrate good faith will of course be up for discussion). In the end, whether or not negotiations bring about a certain result does not have a necessary bearing on the fulfilment (or breach) of the obligation to negotiate.

This seems to be different when it comes to the obligation to conclude negotiations and achieve the result of ‘nuclear disarmament in all its aspects’. If Article VI NPT indeed requires the achievement of such a result, the duty-bearers of this obligation will be highly dependent upon one another when it comes to complying with this requirement. The desired result of complete nuclear disarmament, whether or not through the conclusion of a multilateral treaty, cannot be brought about by a duty-bearer on its own; regardless of the amount of effort it puts in or the extent of good faith it displays (for example by unilaterally declaring that it will dispose of its entire nuclear arsenal). This would entail that the obligation cannot be fulfilled by any duty-bearer as long as the result of total nuclear disarmament has not been achieved. At the same time, it is not clear when this obligation would be breached, as no definitive timeframe has been set out within which negotiations should be concluded and/or complete nuclear disarmament should be achieved. Should a breach nevertheless be established, the question arises whether this would automatically result in shared responsibility for all duty-bearers.

The proceedings instituted by the RMI may provide the ICJ with an opportunity to clarify the substantive content of Article VI NPT. At first sight, the ICJ’s pronouncements in its Nuclear Weapons Advisory Opinion seem to support the argument that Article VI NPT gives rise to an obligation that goes beyond a ‘mere’ obligation to negotiate. But how far does that obligation go? Does it really require that the result of complete nuclear disarmament is achieved before duty-bearers can fulfil the obligation, regardless of the result achieved by each duty-bearer individually? Should nuclear disarmament necessarily be achieved through the conclusion of a multilateral treaty? And would a breach of the obligation to achieve nuclear disarmament entail that both nuclear weapon states and non-nuclear weapon states would share the resulting responsibility?

In the midst of these uncertainties, what does seem evident is that progress towards nuclear disarmament is occurring at a disturbingly slow pace. A clarification of what it is that states must do in order to comply with their legal obligations will make it more difficult to justify their inaction; hopefully bringing us one step closer to the collective goal of nuclear disarmament.

______________________________________________________________

[1] Legal Memorandum by the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic Human Rights Program, Harvard Law School, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice (International Human Rights Clinic Human Rights Program, Harvard Law School, Cambridge, 2009) at 4. Available at http://www.un.org/disarmament/education/docs/goodfaithnegs.pdf.

[2] Railway Traffic Between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J. Series A/B No. 42, p. 108, at p. 116.

[3] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para. 99 (emphasis added).

[4] Ibid., at para. 100 (emphasis added).

Responsibility for peace, and responsibility in war: on the military operation in Mali

 Posted by: Bérénice Boutin

It has been almost two weeks since France began a military intervention to help the Malian army fight Islamist groups controlling the north of the country. The operation — code-named ‘Serval’ — was sparked by the ‘serious deterioration of the situation’ in Mali, after successful offensives by extremists who managed to take over the city of Konna, ‘a frontier town that had been the de facto line of government control’. The action of France, coming about after months of lengthy negotiations attempting to resolve the crisis in Mali, has been overall welcomed by the international community, and reportedly relatively successful in pushing back Islamists. In terms of international law, the military operation raises a number of issues, two aspects of which this blog post will address: the responsibility for maintaining peace, and the responsibility during the conduct of war.

1. RESPONSIBILITY FOR MAINTAINING PEACE

France has repeatedly stated that it was acting in accordance with international law, referring to UN Security Council Resolutions, Mali’s request, and/or Article 51 of the UN Charter to support its claim, but fell short of elaborating which specific legal ground was actually justifying its operation. To begin with, French actions cannot be said to fall within the ambit of UNSC Resolution 2085, which authorized on 20 December 2012 the deployment of an international military force in Mali. Resolution 2085 indeed authorized an African-led International Support Mission in Mali (AFISMA), to be composed of troops from member States of the AU and ECOWAS and other countries in the region. Besides, the Resolution states that ‘the military planning will need to be further refined before the commencement of the offensive operation’. The fact that the UN Secretary-General expressed the hope that the intervention would be ‘consistent with the spirit’ of UNSC Resolutions only confirms that the French operation is not based on any of them. Although authorized by the UN, the deployment of the AFISMA has been protracted inasmuch as the force ‘was not expected to even begin its offensive before next September or October’. In this context, the French operation was a very swift answer to an urgent call for help from the Malian government, at a time where troops from neighboring States were not in the position to rapidly react.

This request by Mali is actually what justifies best the use of force by France. Indeed, pursuant to Article 20 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR), valid consent from a State ‘precludes the wrongfulness of that act in relation to’ this State. Accordingly, since Mali solicited France to use force in its territory, the forceful action otherwise wrongful became justified. Some doubts have been raised as to whether the consent expressed by the current Government of Mali, an interim government in place since only a few months and established in the wake of a military coup, can qualify as ‘valid’ in the sense of Article 20 ASR. The legitimacy of a government is indeed an element to be considered in appraising the validity of consent according to ILC commentary to Article 20 (para 5); yet the notion is far from having a settled meaning in international law and rather depends on the perceptions of each State. An unequivocal appraisal of the legitimacy of the Malian Government would be difficult and does not appear necessary for the purpose of Article 20 ASR. What can be demonstrated is that a number of States — which positively considered Mali’s request — are of the opinion that the Government is, so to speak, ‘legitimate enough’ to demand an intervention. Indeed, Mali’s interim President Traoré was admittedly not elected, but was appointed with relative international support, notably from ECOWAS. Besides, the local population has appeared very favorable to the military operation since its inception, confirming the legitimacy of the Government’s consent.

In such a situation of requested intervention within an internal conflict, Article 2(4) of the UN Charter, which prohibits the use of force between States, actually ‘does not come into play’[1]. The absence of inter-State conflict is also why the argument of (collective) self-defense — notably advanced before the UNSC by the Permanent Representative of France to the UN ­— ought to be discarded. As rightly demonstrated by Prof. Christakis and Dr. Bannelier on EJIL:Talk!, it does not make sense to interpret Article 51 of the UN Charter so as to include self-defense against rebel groups in northern Mali.

The operation thus appears justified, and has been overall widely praised by the international community given the urgency of the situation. This formal support however stands in sharp contrast with the very limited concrete support contributed to the operation. A number of Western States have expressed their willingness to contribute logistical support, but none has offered to participate in combat operations. The UK, for instance, has agreed to make transport aircrafts available to France, and even sent a few troops charged with providing strategic support, but stressed that no troops will be deployed in combat operations. Belgium, Canada, Denmark, Germany and the US are amongst the other States which deployed transport planes to help transporting French equipment and troops to Mali. The EU has accelerated the approval of a EU Training Mission (EUTM), but its troops will be focused on training the Malian army, and will not directly help fighting rebels. As mentioned above, African States have the willingness to participate but have a limited capacity to deploy their troops in haste. Many of them confirmed their commitment to send troops for the AFISMA, but ‘even if some troops arrive in Mali soon, training will take more time’, so that help from States able to quickly react is needed until the peacekeeping force is fully deployed.

The various contributions provided are useful and welcome. It is nonetheless striking that most international actors support the intervention, but none of them want to get dirty hands by actually going to war. In other words, many States seem unwilling to share the burden of restoring peace in the area. In his 2004 Report ‘A more secure world: our shared responsibility’, the UN Secretary-General insisted that ‘States should strongly support’[2] and broadly participate in efforts to effectively implement the system of collective security. Whether to participate in a military operation aimed at restoring peace is, in any case, a decision that a State is free to make, so that no strict obligation to engage in a war can be formulated. But the collective duty to ensure that peace is maintained in the world is shared by all States. As long as States remain the only actors with military capacities, the aims of this shared duty can only be achieved by increasing cooperation and promoting a wider participation of States.

2. RESPONSIBILITY FOR WRONGFUL ACTS IN MILITARY OPERATIONS

For those States which decide to actively engage in the conflict comes the risk of having their responsibility engaged for internationally wrongful acts. Responsibility in this strict sense refers to the obligation of reparation incurred by a State when a breach of international law is attributable to it. Some allegations of possible wrongful acts in Mali have been made, concerning summary executions by Malian armed forces and civilian deaths resulting from French air strikes. In this military operation, France and Mali are fighting together against Islamist groups. In terms of attribution, the question arises whether their acts can be individually attributed or ought to be attributed to both.

Although cooperating at the strategic level, French and Malian actions have been up to now clearly separable. The armed forces remain under national command with no unified command over both forces, so that every organ remains fully under the authority of its State. Besides, the two States have at first not engaged in common operations. To retake the town of Diabaly, Malian forces fought on the ground, with French forces ‘providing only air support’, and control of the Gao airport was taken by French ground forces acting alone. In these circumstances, wrongful acts occurring in the operations can be individually attributed to each State under Article 4 ASR.

Complicating factors are however likely to emerge. For instance, French and Malian troops could conduct joint operations. It is debated whether a specific conduct alleged as wrongful can be attributed to two States on the ground that they were jointly acting. Article 47 ASR recognizes that the same internationally wrongful act can be attributed to more than one State, and joint acts are one of the circumstances of possible dual attribution mentioned by the ILC in its commentary to this Article. But unless two soldiers pull the trigger together, it can often be argued that a conduct is individually attributed to the State whose organ was acting. Another layer of complexity is to be added with the progressive arrival of forces composing the AFISMA, as well as troops part of the EUTM. The command structures of the each mission will remain distinct, but they will certainly cooperate and possibly contribute to common injuries. The difficulty in such a situation would be to assess the amount of damages to be paid by each responsible party. In time to come, the multiplicity of actors involved in the conflict will raise complex questions of responsibility, which will assuredly be further discussed on this blog.

---

[1] Y. Dinstein, War, Aggression and Self-Defence (5th edn, 2011), p 119.

[2] A more secure world: Our shared responsibility – Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change (2004), p 69.