Covid-19 as a threat to international peace and security: The role of the UN Security Council in addressing the pandemic

On 1 July 2020 – 111 days after the World Health Organisation declared Covid-19 to be a global pandemic – the UN Security Council unanimously passed Resolution 2532. Recognising that the unprecedented extent of the novel coronavirus pandemic “is likely to endanger the maintenance of international peace and security”, the Security Council “demands” a general and immediate cessation of hostilities in all situations on its agenda, and supported the appeal of UN Secretary General António Guterres for a global ceasefire. In this post, I will discuss the potential role of the Security Council in addressing global threats such as the Covid-19 pandemic and the legal nature of the measures called for in the resolution. In particular, I address whether the Council’s “demand” is to be considered a legally binding obligation for States and non-State armed groups.

UNSC Resolution 2532

The WHO declared Covid-19 to be global pandemic on 11 March this year. Twelve days later, the UN Secretary General called for a global ceasefire to focus efforts on fighting the pandemic and open humanitarian corridors to deliver aid to those most vulnerable. On 2 April, the UN General Assembly added its voice by passing Resolution 74/270 calling for “intensified international cooperation to contain, mitigate and defeat the pandemic”. Noticeably silent throughout all of this was the UN Security Council. Tensions between the US and China over the origins of the virus and early response to the pandemic, and the breakdown of the US’ relationship with the WHO led to disagreements over how to refer to the virus and whether to mention the WHO in the resolution. Largely through the efforts of France and Tunisia, a compromise was reached and on 1 July 2020, the Security Council unanimously adopted Resolution 2532. The resolution does not mention the WHO, but the preamble states that it has “considered” GA Resolution 74/270, which itself recognises in its preamble “the central role of the United Nations system in catalysing and coordinating the global response to control and contain the spread of COVID-19, and acknowledging in this regard the crucial role played by the World Health Organization”.

Resolution 2532 is remarkable for the following key provisions. Firstly, it considers “the unprecedented extent of the COVID-19 pandemic is likely to endanger the maintenance of international peace and security” (preambular para. 11). Secondly, it “[d]emands a general and immediate cessation of hostilities in all situations on its agenda” (para. 1). And thirdly, it calls upon all parties to armed conflicts to engage immediately in a durable humanitarian pause for at least 90 consecutive days (para. 2) The general and immediate cessation of hostilities and humanitarian pause does not apply to military operations against Islamic State in Iraq and the Levant (ISIL/Da’esh), Al-Qaida and Al-Nusra Front, and all other individuals, groups, undertakings and entities associated with Al-Qaida or ISIL, and other Council-designated terrorist groups (para. 3). This is the first time that the Security Council has called for a general ceasefire and humanitarian pause in armed conflicts across the globe.

The impact of Resolution 2532

While the UN Secretary-General’s call for a global ceasefire has generated significant political endorsement and reportedly met with some measure of success, the impact on the ground of Resolution 2532 remains to be seen. Given the substantial delay in the adoption of the resolution and the lacklustre response so far, one may question its added value. However, the resolution arguably has an impact on the following issues.

First of all, Resolution 2532 builds on and solidifies the Council’s practice of addressing transnational health crises as threats to international peace and security, which emerged in 2012 in response to the HIV/AIDS epidemic (Resolution 1983) and developed further in response to Ebola outbreaks in West Africa in 2014 (Resolution 2177) and in the DRC in 2018 (Resolution 2439). The implications of the Covid-19 pandemic for international peace and security have been noted elsewhere and will not be repeated here, but given these precedents and the significant global impacts of the pandemic including in conflict settings, it is entirely plausible to characterise it as a threat to international peace and security. As such, the Covid-19 pandemic would fall within the mandate of the Security Council under article 24 of the UN Charter.

This raises two questions: the first concerns the broader implications of the expansion we are witnessing of the concept of “international peace and security” under the UN Charter and the resultant expansion of the Council’s mandate. While this carries potential benefits, including the possibility of addressing the climate crisis as a threat to international peace and security (as Germany is seeking to do during the term of its Presidency of the Council), it also carries risks of extending the scope of collective security measures under Chapter VII. Secondly, what role can the Council actually play in addressing the Covid-19 pandemic? Beyond traditional security-related measures such as calling for ceasefires and humanitarian aid corridors, the Council could also assume responsibility for the global coordination of the pandemic response, particularly as the pandemic’s impacts are broader than health risks but also require global cooperation in a wider humanitarian response. This could include similar measures as called for in Resolution 2177 (2014) on Ebola, such as calling for (or lifting of) travel and border restrictions, calling on Member States to facilitate delivery of assistance including personnel and supplies, enhancing public information campaigns and combating misinformation and mobilizing technical expertise including deployable medical resources. Significantly, the Council could take steps to ensure equitable global access to vaccines and other medical technology that may be developed to fight the pandemic.

Legal nature of measures

Given the potentially far-reaching effects of Resolution 2532, what is its legal nature and is the demand for a global ceasefire binding? The determination of whether a Security Council resolution is binding has been discussed in the literature (for example, here, here and here); in essence it depends on whether the resolution is a “decision” of the Security Council under article 25 of the UN Charter (though there remains controversy over the correct approach to establish this). In its Namibia Advisory Opinion, the ICJ held (at para. 114):

“The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.”

If one considers the Charter provision under which Resolution 2532 is implicitly adopted, its demand for a global ceasefire would appear to be non-binding. The statement in the preamble “[c]onsidering that the unprecedented extent of the COVID-19 pandemic is likely to endanger the maintenance of international peace and security” reproduces the wording of article 34 of the UN Charter. That article, located in Chapter VI of the Charter (pacific settlement of disputes), provides that “[t]he Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” (emphasis added) This seems to indicate that the measures in Resolution 2532 are adopted under Chapter VI, and are thus “recommendations” under article 36 and not binding “decisions” under article 25. (On this point, see the Dissenting Opinion of Judge Fitzmaurice in the Namibia Advisory Opinion, para. 112.)

However, this is clearly at odds with the imperative wording of paragraph 1 of the resolution, which “demands” a cessation of hostilities, and as Rosalyn Higgins has argued, in “certain limited, and perhaps rare, cases”, Chapter VI resolutions can still be binding decisions. The circumstances of adoption of the resolution, in the context of the “devastating impact of the COVID-19 pandemic across the world, especially in countries ravaged by armed conflicts” and its recognition that “conditions of violence and instability in conflict situations can exacerbate the pandemic” (preambular paras. 3 and 4 of the resolution) could provide a basis for the Council’s intention to support the Secretary-General’s call for a ceasefire by turning it into a binding obligation. However, this intention has not been made explicit either in the resolution itself or in statements before or after its adoption, and it is significant that the resolution does not recognise the Covid-19 pandemic as a threat to peace (as would be required for enforcement measures under Chapter VII). In sum, it is unclear if the demand for a general and immediate cessation of hostilities in all situations on the Security Council’s agenda is legally binding, though of course it is open to the Security Council to adopt a further resolution to enforce compliance under Chapter VII, which would make it binding in a practical sense.

Even if the call for a global ceasefire in Resolution 2532 is considered legally binding, it remains open to question whether it would also bind non-State armed groups, which of course are party to many of the ongoing armed conflicts on the agenda of the Council, but are not Members of the United Nations. Although the legal basis for Council decisions binding non-State groups is unclear (as Henderson and Lubell discuss), in previous resolutions, the Security Council has addressed demands to “all parties” to a non-international armed conflict (e.g. Resolution 918 (1994) (Rwanda), para. 1) or demanded that specific non-State armed groups end all offensive actions (Resolution 1244 (1999) (Kosovo), para. 15). This could either show that the Council itself assumes that it has the power to create obligations for non-State armed groups, or could simply be the articulation of a political call.

Ultimately ­– whatever the legal nature of Resolution 2532 – the German Federal Minister for Foreign Affairs, Heiko Maas, has argued that “[t]he Council must finally embrace a broader understanding of peace and security … today, we know a virus can be more deadly than a gun”. It remains to be seen to what extent this view will be embraced by other members of the Security Council and the international community, including with respect to the climate crisis.