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.
