Cholera in Zimbabwe: UN Security Council Authority to Respond to Public Health Emergencies Under Chapter VII of the UN Charter

During the past week, three of the five permanent members on the United Nations Security Council publicly called for Zimbabwe President Robert Mugabe to step down from office. The United States, France, and the United Kingdom point to the continued violence, the regime’s repressive policies against opponents and the media, its failed economic management, and the worsening cholera and humanitarian disasters. On Sunday, Kenya’s Prime Minister Raila Odinga recommended an immediate authorization of African Union or UN troops by the African Union and the UN Security Council acting under its Chapter VII powers and the investigation of President Mugabe for crimes against humanity. China and Russia, however, are leery of the potential precedent should the UN Security Council authorize coercive intervention in Zimbabwe’s sovereign domestic affairs. The government of Zimbabwe, meanwhile, contends that the cholera outbreak is the direct consequence of international sanctions and that the major powers are using the outbreak as political smoke screen to “mask their itch for aggression.” This post discusses whether there is legal authority under international law for the international community to respond through the UN Security Council to a public health emergency, in the absence of state consent, when a state fails to protect its citizens or the people of other states during an infectious outbreak.

“If no troops are available, then the AU must allow the UN to send its forces into Zimbabwe with immediate effect, to take over control of the country and ensure urgent humanitarian assistance to the people dying of cholera.”

– Kenya Prime Minister Raila Odinga
Nairobi, 7 December 2008

Specifically, the discussion explores: (a) the authority of the UN Security Council acting under its Chapter VII powers to authorize a coercive intervention in response to an epidemic, and (b) the potential justification under the emergent humanitarian doctrine of the “Responsibility to Protect” and how R2P may support, differ from, and constrain a health-related intervention to halt infectious disease spread.

Conclusion: An argument for UN-authorized intervention under the Chapter VII powers in response to an infectious outbreak in the absence of a deliberate attack, direct foreign causation or involvement, and state consent is neither affirmatively supported nor precluded by Security Council resolutions, precedent, or states’ comments. Further, although the R2P doctrine offers a viable moral justification, its application in the public health context may produce unexpected and potentially undesirable outcomes. The principles of R2P, however, hold important lessons for public health emergencies and may serve to constrain the abuse of power by promoting mechanisms to protect individual human rights.

Coercive Intervention under the UN Security Council Chapter VII Powers

Affirmative legal authority under international law to intervene in state affairs without consent historically has been constrained under the UN Charter by the principle of state sovereignty and the prohibition against coercive force subject to two exceptions: self-defense in response to an armed attack and authorization from the Security Council under the Chapter VII powers in response to a threat to international peace and security after the exhaustion of all peaceful means. Chapter VII grants authority to the Security Council to determine the existence of a threat and to decide what measures are to be taken in response to the threat. Notably, under article 2(7), the Charter’s prohibition against violating state sovereignty does “not prejudice the application of enforcement measures” of the Security Council powers under Chapter VII.

Pursuant to the Charter’s affirmative powers and under these constraints, this section examines the potential legal authority of the Security Council to intervene in response to an infectious outbreak in the absence of state consent and whether the permissible measures can include the use of force to enforce quarantine. The discussion explores whether prior resolutions declare infectious diseases a threat to international peace and security, whether the Security Council has ever explicitly denied authorization to intervene for disease control, and what types of coercive measures have been, or may be, authorized to respond to a public health threat.

Infectious Diseases as Threats to International Peace and Security

The Security Council unanimously has adopted three landmark resolutions relevant to biological threats to which subsequent resolutions refer: two resolutions recognizing biological weapons as threats to international peace and security under Chapter VII and one resolution stressing that an infectious disease, specifically HIV/AIDS, may pose a threat to security. The resolutions do not define threshold criteria for determining when a biological threat constitutes a threat to international peace and security or the permissible response measures. Equally, none of the three resolutions explicitly authorizes coercive measures under the Chapter VII powers or enforcement measures for noncompliance with the resolutions. Resultantly, the resolutions neither affirm nor preclude the Security Council’s authority to establish and enforce coercive measures to restore and maintain international order in response to a biological threat. Further, subsequent resolutions do not broaden the scope of or clarify the enforcement measures. Thus, the ability, scope, and role of the Security Council acting under the Chapter VII powers remain unclear and unspecified with respect to an international infectious disease crisis.

Bioweapons and Deliberate Biological Threats

The two resolutions referring to biological weapons, resolutions 1373 and 1540, invoke the Security Council’s compulsory powers under Chapter VII to condemn terrorist acts and weapons of mass destruction as threats to international peace and security and affirm the Council’s authority to take actions against the proliferation of biological weapons and their means of delivery. The resolutions represent a new exercise of the Council’s power under Chapter VII for two reasons: they (1) declare a general concern, not a specific situation or dispute, as constituting a threat to international peace and security, and (2) impose legally binding obligations outside multilateral treaty-making processes on all UN member states to enact domestic legislation related to counterterrorism and counterproliferation. The legislative nature of the resolutions provoked states to raise concerns about state sovereignty, the ability of the international community to authorize measures beyond national jurisdictions, and the legitimacy of international intervention. To allay states’ concerns, the United States clarified that Resolution 1540 is “not about enforcement” and that “Member States not parties to treaties or regimes will not be forced, through this draft resolution, to adopt them.”

Still, all UN member states are expected to adopt and strengthen domestic legislation to essentially implement the prohibitions of production, development, stockpiling, and use of biological agents set forth in the Biological and Toxins Weapons Convention (BWC). Further, universal implementation of Resolution 1540 in national legal frameworks would provide greater sanctions or enforcement options not currently available or enacted under the BWC while not altering the authority of the Security Council to respond to a violation that poses a sufficient threat to international peace and security. However, neither the resolutions nor treaty-based obligations, such as those under the BWC, define the evidentiary threshold to justify coercive international preemption to respond to a biological threat. Further, the lack of specific standards for states to follow when implementing the resolutions contributes to legal uncertainty over what constitutes adequate and effective state action in response to an infectious biological threat. Thus, the Security Council leaves undefined the contentious boundary between state sovereignty and the right of the international community to take concrete action when a state’s actions are inadequate.

The resolutions should not be read to declare that any bioweapon attack within a state constitutes a per se threat to international peace and security, even when the deliberate infectious agent is present in a major urban area served by an international airport, as described in one of the earlier scenarios.

For example, when anthrax attacks from an unknown source occurred in Washington, D.C. in 2001, the United States spurned international action by asserting that the intentional use of an infectious pathogen is presumptively a domestic criminal matter until, at minimum, the demonstration of foreign pathogen origin or foreign involvement. The United States did not elaborate on what further criteria might be required to declare a biological attack a threat to international peace and security.

The U.S. argument is consistent with the empowerment of sovereign states to prosecute and punish offenders under domestic legislative frameworks called for in resolutions 1373 and 1540. On this rationale, the United States diplomatically thwarted a French-led proposal to introduce a resolution before the Security Council denouncing the anthrax attacks as a threat to international security. The anthrax attacks in 2001 demonstrate the lack of agreed legal rules to justify Security Council authorized intervention in response to a biological threat.

Significantly, the U.S.-articulated indicators for an international threat, while limited to a specific situation and not considered comprehensive, emphasized factors leading to the release of the bioweapon rather than post-release consequences or medical factors, such as the mode of disease transmission. Accordingly, the discussion avoided the consideration of other determinative factors of a threat to international peace and security, such as the potential risks of international disease spread, the likelihood of disease containment through rapid international response, and the economic consequences resulting from the attack.

Unintentional Biological Threats

Thus far, the legitimacy of the Security Council’s role has been defined in the context of deliberate biological threats, but there is one resolution relevant to when the underlying pathogen source is unknown, accidental, or naturally occurring. Security Council Resolution 1308 in 2000 recognized for the first time the potential for a public health issue to pose a threat to security. Specifically, the resolution stressed that “the HIV/AIDS pandemic, if unchecked, may pose a risk to stability and security.”

The groundbreaking resolution, however, should not be interpreted to suggest that the Security Council would be willing to respond with force to a domestic health emergency in the absence of state consent for five reasons. First, the statement appears in the nonbinding preoperative paragraphs. Second, the intentional omission of the word “international” before “security” and the use of “risk” rather than “threat” avoid the language of Chapter VII and thus suggest that the infectious health risk remains within the principle of nonintervention. Third, the operative paragraphs encourage, rather than require, state conduct of prevention and treatment and thus uphold the state-centric model of local disease control as consistent with the World Health Organization’s position that local governance improves health care. Fourth, statements by Security Council delegates support an interpretation in favor of state sovereignty. For example, the architect of U.S.-led Resolution 1308 explicitly asserted that “this resolution in no way infringes on sovereignty or the authority of countries.” Lastly, the resolution was not adopted under the Chapter VII powers. Thus, the resolution was not intended to be construed to affirm the right of coercive intervention under the Chapter VII powers of the UN Charter in response solely to an infectious outbreak.

Still, Resolution 1308 does not preclude Security Council authorized interventions for infectious disease, regardless of causation, for two reasons. First, the Security Council has never explicitly denied intervention authorization for infectious disease control. Second, continuing attempts to clarify what constitutes a threat to international peace and security may yet broaden to include possible health and economic consequences from infectious outbreaks. The Council’s willingness to broadly and flexibly interpret what constitutes a threat is supported by prior Chapter VII interventions in Somalia, Haiti, Bosnia, and East Timor, which were triggered by failures in democracy and in the protection of human and humanitarian rights. The potential justification to respond to a health emergency under the broadened scope of humanitarian intervention is discussed in greater detail in Part II of this paper.

In summary, an argument for UN-authorized intervention under the Chapter VII powers in response to an infectious outbreak in the absence of a deliberate attack, direct foreign causation or involvement, and state consent is neither affirmatively supported nor precluded by Security Council resolutions, precedent, or states’ comments.

Coercive Measures to Respond to Epidemic Threats

Assuming the legitimacy of a threat to international peace and security from an infectious disease outbreak, the Security Council has the authority under the Chapter VII powers to authorize enforcement measures “to maintain or restore international peace and security” through non-forceful and forceful means. Prior Chapter VII resolutions have authorized commerce and trade restrictions, travel restrictions, embargoes, and police and military forces. In the public health context, circumstances may require international intervention to establish disease control mechanisms, ensure vaccinations and medical treatment, and restrict movement of people, animals, and goods to foster disease containment.

Accordingly, the authorized measures could range from disease surveillance and travel and trade restrictions under article 41 to increasingly intrusive measures requiring the use of force, such as law enforcement or military action to enforce quarantines or to maintain order, under article 42. All these measures carry the burden of potentially substantial economic impacts on affected countries, as well as on international commerce. Because there is no precedent for Security Council authorized coercive measures in response to an infectious outbreak, it is difficult to predict what measures would be used, in what escalating or concurrent sequence, and the extent of deference given to economic impacts and state sovereignty. Further, infectious disease interventions pose new requirements and challenges not encountered during previous interventions, including the training of UN peacekeeping forces in infectious disease protocols and enforcement procedures for quarantines, policy input by medical experts, public health resources, and legal frameworks to indemnify medical responders.

Thus, the Security Council could employ a range of measures specific to an infectious outbreak, but it remains unclear whether those measures adequately will achieve their goals in a public health context and, if ignored in policies and practice until needed, could delay the response or produce unintended consequences.

Chapter VII Authorization: Public Health Security Exemptions from Treaty Obligations

The anticipated need for health-related aspects of enforcement measures under Chapter VII is evidenced in two agreements under the World Trade Organization (WTO). GATT article XXI and TRIPS article 73(c) create similarly worded security exemptions from treaty obligations when the state is “taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.” As such and consistent with UN Charter article 103, states may exercise the right to an exemption from treaty obligations, inclusive of an exemption from pharmaceutical licensing. Because the exemptions have never been brought before the WTO dispute panel as the enforcement body, it remains unclear whether any state has exercised these exemptions pursuant to Chapter VII authorized interventions and the scope of the exemptions. However, the existence of the exemptions suggests that states anticipated enforcement measures under the Chapter VII powers as requiring pharmaceuticals and thus leaves the legitimacy of coercive international intervention in response to an infectious disease open to further discussion and interpretation.

Responsibility to Protect (R2P) and Humanitarian Intervention in the Context of Infectious Outbreaks

Historically, the presumption of nonintervention under article 2(7) of the UN Charter historically has precluded coercive intervention in solely domestic affairs, even for egregious state conduct, in the absence of state consent.

The normative advancement of the “Responsibility to Protect” (R2P) doctrine increasingly has challenged this historical presumption of nonintervention. R2P is based on the principle that governments have a responsibility to protect its citizens and people within its territories from genocide, crimes against humanity, war crimes, and crimes of aggression. In the case of a humanitarian crisis, the state has the responsibility to protect individual human rights and to prevent abuses. This may involve domestic military action to thwart violent action, declarations of emergencies, and imposition of curfews.

In the public health context, the state has a responsibility to protect against the spread of epidemic diseases. In doing so, the state has a dual-responsibility: to protect individual health as an individual human right recognized by international human rights instruments and to protect societal health as also recognized under international human rights instruments. Further, states have a legal duty under the International Health Regulations to prevent the spread of disease domestically and internationally and have the obligation to respond adequately to a “public health emergency of international concern,” a term of art supported by a decision instrument included with the treaty. The Regulations require states to monitor disease outbreaks, to notify WHO under specified conditions, to provide verification of reported events, and to strengthen their domestic capacities for surveillance and response, including the maintenance of health facilities and services to reduce the risk of disease spread at international airports, ports, and ground crossings. There is no enforcement mechanism defined under the treaty to address a state’s failure to respond to an infectious threat or to comply with its international obligations under the Regulations.

The UN General Assembly endorsed R2P in the 2005 World Summit Outcome Document. The legal authority for coercive intervention under the doctrine, however, remains unclear. The U.S.-based Genocide Prevention Task Force of 2007-2008 refers to the R2P doctrine as “moral suasion” rather than legal authority to intervene. Across the international community, legal experts remain divided on the legality of unilateral humanitarian interventions along a spectrum: unlawful, unlawful but morally excusable, justifiable under customary law, and lawful.

Criminal Culpability Required for Coercive Public Health Interventions Under R2P

The original drafters of the R2P principles in 2001 assert that R2P requires a demonstration of criminal culpability under the major crimes recognized under the Rome Statute of the International Criminal Court. Thus, the Security Council would not be authorized to act where the non-cooperating government acted recklessly or negligently, such as in its economic policies or public health approach. The government’s conduct must be criminal. Thus, in the case of Zimbabwe, the Security Council would need to establish that Mugabe’s actions violated international criminal law in order to authorize coercive actions pursuant to the emergent norm of R2P. For further discussion, see my prior post from 28 October 2008: R2P: Ending Mass Atrocity Crimes with Gareth Evans.

Disadvantages of R2P in the Public Health Context

Although the R2P model appears consistent with health-related interventions based on high-level goals, the two emergencies fundamentally differ in their causation. R2P was developed largely in response to large-scale atrocities of human-caused violence. Infectious disease emergencies, in contrast, involve biological pathogens as the source of harm. This difference gives rise to potential conflicts when applying the R2P doctrine within a public health context. Specifically, conflicts could arise with respect to the responsibility to protect principles of the “just cause” threshold, the precautionary principle, and the right authority. These differences in appropriate triggers for authorizing interventions and decision-making authority could lead to delayed responses and increased risks of infectious disease spread.

First, the “just cause” threshold permits military intervention for human protection purposes subject to the existence of at least one of two conditions. First, there must be a “large-scale loss of life” occurring or imminently likely to occur as the result of deliberate state action or state inaction or inability. Alternately, there must be large-scale ethnic cleansing. Both criteria were developed to address mass atrocities caused by violence. Although medical authorities and policy decision-makers similarly look to mortality rates and the threat of mass-scale deaths when assessing the severity of a public health emergency, a narrow focus on the threat of or occurrence of mass-scale deaths could obscure other medical considerations unique to an infectious outbreak and response, including the significant risk of disease spread through infectious individuals still alive. This is particularly problematic where the mortality rates may be initially low or unknown, depending on the nature of the pathogen, incubation periods, and medical outcomes. For example, a particularly virulent and rapidly infectious pathogen provokes greater alarm and a higher severity risk, even with a few deaths. While mortality rates are relevant in that they indicate the responsiveness of the infectious disease to treatments, the impact on human lives, the geographical distribution of the disease, and the intensity of it, waiting for high mortality rates to trigger coercive intervention could ignore the time-critical nature of an infectious biological incident. Thus, a strict application of the just-cause threshold as defined for humanitarian interventions could lead to a delayed public response with possibly increased infectious transmissions rates and potentially greater loss of human lives or quality of life.

Second, under the precautionary principle, a coercive international intervention must use military intervention only as the last resort after other options are exhausted. In contrast to the gradual and escalating approach to military intervention of a violent conflict, military intervention in support of public health to prevent or avert a pandemic may be best suited to swifter action for two reasons: first, to prevent disease spread and, second, to leverage health care delivery system capacity. The health care capacity includes, among other things, medical supplies, pharmaceuticals, health facilities, and healthy caregivers. In addition to the health care system delivery capacity, supporting capacity also must be considered, inclusive of law and order providers, food providers, water sanitation, laundry, communications, political governance, and other societal functions. A widespread infectious outbreak has the potential to impact a variety of these critical functions necessary for a successful response and outcomes. Thus, quarantines may be prudent earlier, rather than later as detailed by the precautionary principle, pursuant to effective disease containment measures. If so, the use of military force may be necessary as an early action for human protection purposes and to further the likelihood of success.

Third, the concept of right authority recognizes the Security Council as the best authority to authorize military intervention for human protection in the absence of state consent. However, its application in the public health context poses two problems. First, the procedural steps to protect state sovereignty through Security Council hearings may preclude a rapid response, particularly when a highly contagious pathogen may require near-immediate action for disease containment. Under the right-authority concept, states must submit a formal request for a coercive humanitarian intervention in advance to the Security Council, which then assesses the allegations, seeks adequate verification of the facts, and decides whether to intervene and the measures to be used. This process, even if shortened to a few hours, could still delay essential and rapid public health responses depending on the type of pathogen and the rate of transmission. Second, the Security Council may not have the expertise to evaluate the evidence. Infectious disease emergencies differ from other military, political, or humanitarian emergencies in that they involve a medical element, requiring understanding not only of the infectious pathogen but also of the appropriate and effective medical and public health responses. One controversial proposal is to increase the relationship between the Security Council and the WHO Director-General, who would provide advice on the level of risk, disease containment strategies, and which enforcement measures to use, when, and how. Opponents criticize WHO as having limited operational experience and also question the appropriateness of a single agency’s input when health cuts across multiple UN agencies, ranging from trade, travel and tourism, and agriculture to intellectual property. Thus, the application of the concept of right authority in the context of health-related interventions may ignore the role of medical expertise and the complexity of analysis and response beyond that typically encountered in humanitarian interventions.

Potentially Beneficial Human Rights Constraints of R2P on Coercive Public Health Interventions

Whereas the goal of R2P and humanitarian interventions is to protect individual human rights, public-health interventions may involve the curtailment of civil liberties and infringement on human rights, particularly as the result of disease control mechanisms. The most vivid examples include compulsory isolations or quarantines and potentially mandatory drug treatments or vaccinations. These methods of disease control constrain individual interests, even where proportional means are used, but generally represent permissible derogations from human rights obligations during an emergency to safeguard the societal goal of public health. Which specific individual interests are implicated by compulsory public health powers is still an open discussion with scholars disagreeing on whether disease control measures impinge solely on civil liberties or also on human rights.

Significantly, the International Health Regulations lack sufficient specificity on the appropriate use of compulsory public health powers, such as quarantine, and thereby leave states largely to define the implementation details. Accordingly, the humanitarian intervention doctrine, with its focus on individual rights, may benefit emergency public health powers by providing substantive and procedural mechanisms to ensure the rights of the individual are considered and granted protections. For example, the principles and guidelines developed under the humanitarian intervention model and the larger field of human rights could serve to shape the limits of coercive public health powers through the identification of specific rights for people exposed or potentially exposed to infectious diseases, such as the affirmative right to medical treatment or the right to refuse treatment, and fair procedural safeguards, such as limits for detention or the ability to appeal one’s detention to an independent entity for review. To that end, the core goals of R2P to protect individual human rights constrains, yet also benefits, public health interventions by influencing how coercive measures should be applied to ensure respect for human rights, transparency, and accountability as consistent with human rights law.

Thus, health-related interventions to prevent infectious disease spread share sufficient similarities with humanitarian R2P interventions to justify an affirmative exercise of power by the international community in extraordinary circumstances and under similar doctrinal goals. The differences in evidentiary and appropriate policy triggers, however, may lead to unintended consequences upon application of the humanitarian guidelines in the public health context of infectious disease response. Further, the principles of humanitarian intervention could play a valuable role in constraining health-related interventions to ensure minimal protections of individual human rights. Still, a health-related intervention justified under the humanitarian intervention doctrine could face opposition by critics who question the legality, violation of state sovereignty, procedural safeguards, and potential misuse of the power by the international community.

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