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.

Shared Responsibility and the Federal State

 Posted by: Gleider Hernández

Federal States in international law

To the international lawyer at least, the idea of a federal State, which distributes its sovereign competences between different internal orders of government, is generally irrelevant: how a political community structures its internal relations has nothing to do with how its sovereignty as a State is exercised externally.

The classical international legal fiction is that a State is a ‘black box’: whatever internal arrangements may have been devised, the federal State alone is responsible for international relations, and alone is a subject of international law. The ‘black box’ metaphor is rooted in the very idea of State sovereignty, as the Permanent Court stated in its very first judgment, in the Case of the S.S. Wimbledon: the capacity ‘of entering into international relations is an attribute of sovereignty’.[1] But it is not merely a metaphor or fiction: the centralisation of the capacity to act externally has been constitutive of a great many theories about the nature of international law as a system, not least Article 27 of the Vienna Convention on the Law of Treaties, which precludes that a State may evade its international obligations by invoking its internal law.

Despite this, the research question arose: to what extent are the acts of a federated entity cognised at international law? The question is relevant from both municipal and international perspectives. There are indeed several federal States whose component entities act on the international plane. Certain federal constitutions, inter alia, those of Germany, Switzerland, Austria and Belgium, as well as the special arrangements for Macau and Hong Kong, allow for the autonomous international action of their component entities. To these one can add the international agreements entered into by the provinces of Canada and the states composing the United States and Australia; although these are not constitutionally recognised in those federal States, the federal order often enables or co-signs agreements entered into by its federated entities. There are hundreds of agreements (accords, ententes) between federated entities and third States, or between each other.

Relatively few third states are willing to recognise and respond to such arrangements autonomously, without the oversight or guarantorship of the federal State. With few exceptions, notably that of France in its relations with the Canadian province of Quebec,[2] third States variously demand accords-cadre (‘framework agreements’) through which the federal order recognises or guarantees the agreement between its federated entity and the third State. This consistent practice would seem to confirm that, on the international plane at least, the capacity of federated entities to contract international obligations remains a question requiring the intervention of the federal State, as the plenary subject of that legal order.

But what of responsibility? The classical legal positivist view would recall that, formally at least, federated entities are nothing more than ‘organs’ of federal states in the sense of Article 4, paragraph 1, of the ILC Articles on State Responsibility, to the effect that if they breach international law, the federal State alone is responsible. It is true that practice has been sparing with respect to the recognition by third States of the capacity of the sub-State entities of another State to enter into international agreements with it. But in cases where internal constitutional arrangements have received international recognition, can a federated entity be held internationally responsible for its acts which are in breach of that obligation so undertaken?

Concurrent or shared responsibility

The default rule in international law is that the federal State remains responsible for the acts of its federated entities, and its responsibility cannot be excluded, whatever the domestic constitutional arrangements might provide.[3] The interesting question is whether that default rule excludes the possibility of the international responsibility of federated entities; and research into practice suggests that the question is less clear-cut than it would seem. Although relatively few, certain States have readily entered into international agreements with federated entities, suggesting that they are at least prepared to assume the ‘risk’ of dealing with a non-State organ or entity. In such circumstances, where there is ex ante agreement from the third State, the better view is to see international law as neutral with respect to the domestic constitutional arrangements of a federal State. There is no rule of international law which precludes a third state from accepting the separate international legal personality of a sub-state entity on a given subject-matter, entering into relations with that sub-state entity, and claiming against that sub-state entity in the event of a breach.

Presuming, for a moment, that the third or foreign State has recognised the internal arrangements of a federal State, what forms of responsibility could be invoked by that third State in case of a violation of an international obligation? One way to approach responsibility could be to share it between the two layers of government in a federal State. An injured party could file proceedings against either level of government, and these could later determine between them how such responsibility should be apportioned. Although there is little practice under the shared responsibility paradigm, in Canada a number of ‘indemnity agreements’ ensure that, although the federal government retains primary responsibility to indemnify injured third parties for breaches of international law by its provinces under the accords-cadre, it may seek reparation against a province for its contribution to the breach. In Switzerland, the Confederation government negotiates agreements on behalf of its cantons, and accepts external responsibility for any breach, but retains internally a right to seek reparation from its cantons. Similarly, the Belgian federal government retains a ‘power of substitution’, where it may substitute with one of its communities or regions in order to comply with a ruling against one of these by an international or supranational court or tribunal, and then retains the power to seek reparation from them. In such situations, a third State does not regard itself at risk of being denied reparation, and the federal State has recourse against its federated entities. This limited practice suggests that a model of shared responsibility, although difficult to implement, is far from impossible.

Conclusion

The modest theories on concurrent or shared responsibility put forward here depend on a reconceptualisation of federated entities not purely as organs or agents of the federal state, but rather as possessing limited international personality by virtue of their sovereign competence over various attributes of states, perhaps viewed in an overlapping or interlocked relationship with the federal government. It is the division or apportioning of sovereignty that is of wider interest in matters of shared responsibility in federal states. Such arrangements open exciting potential possibilities with respect to the role that federated entities can play in international relations, a dynamic role that can be accommodated within international law with some creativity.

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[1] Case of the S.S. Wimbledon (United Kingdom v. Japan), PCIJ, Ser. A., No. 1 (1923), 25.

[2] Even in that situation, which is marked by the constant debate over Quebec secession, the federal government of Canada insisted on exchanges of letters with France and a subsequent accord-cadre to validate Quebec-France agreements and assume international responsibility for any breach.

[3] See, e.g., Article 32 of the ILC Articles on State Responsibility, and LaGrand (Germany v. United States of America), Provisional Measures, ICJ Reports 1999, p. 9, at p. 16, para. 28.