This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.
The fight against Ebola has brought into stark focus the global threat emanating from viral diseases. In response to the outbreak of the deadly virus in Africa, in 2014 the UN Security Council adopted Resolution 2177 characterizing the epidemic as a threat to international peace and security and calling in its operative paragraphs on all Member States to provide international assistance and co-operation.
While the resolution has been widely applauded as a landmark for global public health (see e.g. here and here) this post questions whether the peace and security approach taken by the Council risks undermining the normative force of the right to health and the associated obligations of international co-operation. To better appreciate the challenges posed by the Security Council’s response to Ebola, the post will first briefly look at the content of Resolution 2177 before reflecting on what the resolution omits. Against this background the final part discusses what consequences flow from this (sin of) omission.
Governing in situation of crisis: UN SC Resolution 2177
After convening an emergency meeting on 18 September 2014, the Security Council adopted Resolution 2177 entitled “Peace and security in Africa”. The resolution, sponsored by a record number of 130 countries and adopted unanimously by all Council members, characterized “the unprecedented extent of the Ebola outbreak in Africa” as a “threat to international peace and security”. After having underlined that:
“the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate…”.
While the link between the virus and regional instability – let alone international stability – is not made entirely clear in the resolution, the reference to international peace and security in a non-military context hardly constitutes a novelty in the Council’s history. Ever since the end of the Cold War the significance given to “non-military sources of instability in the economic, social, humanitarian and ecological fields” (see Presidential Statement S/23500, 31 January 1992), has meant a widening of the Security Council’s traditional area of competence beyond the limited sphere of inter-state military conflict. Viewed from this broad perspective, one may come to think of the Council as the natural body to govern in crises situations. Despite the Council’s determination of the existence of a threat to peace and security in accordance with the language of Article 39 of the UN Charter, however, there is no reference in the text of the resolution that the Council was in fact acting under Chapter VII of the Charter.
What emerges clearly from the Council debate is the urgent sense of communal action to meet – what was described by many participants – as an “unprecedented” health crisis (UN Doc S/PV.7268). The operative paragraphs of Resolution 2177 thus detail various measures of assistance and co-operation, calling inter alia on Member States “to provide urgent resources and assistance […] to support the affected countries in intensifying preventive and response activities” and urging States “to mobilize and provide immediately technical expertise and additional medical capacity […] and to provide essential resources, supplies and coordinated assistance to the affected countries and implementing partners”. The need for international co-operation was also underscored by a presidential statement of November 2014 in which the Council notes “the considerable efforts of the international community to scale-up its response to the Ebola outbreak” and “commends those Member States, which, in concert with other actors on the ground, have […] provided […] crucial support in the affected countries”.
No reference to international obligations of assistance and co-operation for the realization of the right to health
What Resolution 2177 at no point mentions, is the existence of international legal obligations of assistance and co-operation that obtain both in crisis situations and in the normal course of events. The human right to health and the associated international obligations are completely omitted from the text of the Security Council resolution. In the record of the Council meeting one searches in vain for any reference to human rights. This is surprising since the right to health is widely understood to have implications for public health, including the protection against infectious diseases. Art. 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) which provides for the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” specifically refers to the duty of State parties to take steps that are necessary for “[t]he prevention, treatment and control of epidemic […] diseases”. The Committee on Economic Social and Cultural Rights emphasized in its General Comment no 14 of 2000 the international dimension of the right by observing that “States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to health”. The international obligations pertaining to the right, according to the Committee, are not limited to a negative duty of non-interference with the right to health in other countries but comprise – subject to the availability of resources – an obligation to “facilitate access to essential health facilities, goods and services in other countries, wherever possible, and [to]provide the necessary aid when required.” The Committee, moreover, underlines that:
given that some diseases are easily transmissible beyond the frontiers of a State the international community has a collective responsibility to address this problem.
In addition to being grounded in the widely ratified ICESCR, the duty of international assistance and co-operation for the realization of public health has arguably an additional basis in Article 56 of the UN Charter according to which Member States are “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”. As Article 55 c) explicitly mentions “solutions of international economic, social, health, and related problems”, a commitment to international co-operation in the fight of an endemic viral disease appears to be supported by the Charter text itself.
Weakening the conceptual force of rights frameworks in the context of global challenges?
What are the consequences of the Council’s silence regarding the right to health and the international obligations of assistance and cooperation? One might be tempted to praise the Council for using one of its biggest guns (determining the existence of a threat to peace and security) to marshal an effective response to the Ebola crisis. At the same time, however, the Council’s failure to make any reference to applicable human rights obligations relegates rights to the background, suggesting that they are of minor importance. Yet, particularly in situations which are not considered to reach the threshold of a crisis situation, human rights could provide important guidance on duties of cross-border solidarity. Thus, what is left unsaid in Resolution 2177 matters on a normative level. It is in the nature of international law that norms need to be kept alive and indeed filled with life. If a highly relevant legal obligation is completely omitted from a significant Security Council resolution, the normative value of the corresponding norm is cast into doubt.
In the case of the international obligation of assistance and co-operation in social matters, the omission weighs particularly heavy. The obligatory force of Article 56 has long been contested (See e.g. discussion by M Langford et al in Global Justice, State Duties, CUP 2014, 54-55) Similarly, the obligations associated with the right to health have to contend with normative doubts. While it is true that economic and social rights today do enjoy broad support as an integral part of international human rights, they have arguably not achieved the same acceptance as civil and political rights. What is more, a number of developed States have not accepted the existence of legally binding international obligations in relation to socio-economic rights, arguing instead “that international cooperation and assistance was an important moral obligation but not a legal entitlement” (See UN Doc E/CN.4/2005/52, para. 76).
With this in mind, it might have seemed a pragmatic step for the Security Council to approach the Ebola crisis solely from a security perspective. Yet, it does give one pause for thought that the right to health was at no point mentioned in the Council debate. In a rapidly globalizing world order communal action across borders will increasingly gain in significance. If human rights are to retain their role as dominant conceptual framework by which we assess State action, it is essential that obligations of co-operation and assistance are taken seriously. Or else rights will steadily give way to alternative discourses.