ASIL – Ebola as an Unprecedented Threat to Peace and Security
In March 2014, the World Health Organization (WHO) was officially notified of a rapidly evolving outbreak of Ebola hemorrhagic fever (Ebola) that had begun in Guinea in late 2013. In August, WHO declared the epidemic a “public health emergency of international concern” under the International Health Regulations (IHR (2005)). The number of reported cases and deaths is still growing from week to week, despite multinational and multisectoral efforts to control the spread of infection.
As early as July 2014, the members of the United Nations Security Council expressed “their deep concern over the current outbreak of the Ebola virus in some countries in West Africa.” The Council subsequently discussed the extension of the peacekeeping operation in Liberia (UNMIL), with at least one meeting focussing exclusively on Ebola. On September 15, the Council adopted resolution 2176, endorsing the Secretary-General’s recommendation to defer planned drawdowns of UNMIL. In identical letters dated September 17, the Secretary-General communicated to the Presidents of the Assembly and the Council his decision to establish a United Nations Mission that “will harness the capabilities and competencies of all the relevant United Nations actors under a unified operational structure.”
On September 18, 2014, after a meeting called “historic” by the Secretary-General, the Security Council unanimously adopted resolution 2177, “[d]etermining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security.” The Council recognized the “central role” of WHO and urged Member States to implement the temporary recommendations issued by the WHO Director-General. One day later, the United Nations General Assembly in resolution 69/1 requested “the Secretary-General to take such measures as may be necessary for the prompt execution of his intention” to establish the United Nations Mission for Ebola Emergency Response (UNMEER).
Resolution 2177 marks only the second time that the Security Council has dealt directly with a public health problem—the other being with regard to HIV/AIDS—and the first time that it has considered a disease outbreak as such “a threat to international peace and security.” Seen in conjunction with General Assembly resolution 69/1, resolution 2177 highlights the growing impact that public health issues can have on international security and the corresponding “securitization” of public health.
International Response to the International Spread of Disease: The International Health Regulations (2005)
The IHR (2005), the basis for the temporary recommendations issued by the WHO Director-General regarding Ebola, are the only internationally agreed rules specifically aimed at preventing and controlling the international spread of disease.The current regulations, adopted in 2005 and entered into force in June 2007, constitute a thorough revision of previous versions adopted by the World Health Assembly under Article 21 of the WHO Constitution since 1951.
Since their revision in 2005, the scope of the IHR (2005) is no longer limited to an exhaustive list of diseases. Instead, the regulations are now centred on the notions of “event” and “public health emergency of international concern,” which apply to any cause of international spread of disease irrespective of origin or source. The openness of these concepts means that the regulations now follow an “all-hazards approach,” under which the accidental or intentional release of biological, chemical, or radiological agents would fall within the purview of the instrument if it could lead to the international spread of disease. The IHR (2005) thus applies to the transboundary health effects of biological or nuclear weapons.
Under Article 12 of the IHR (2005), the WHO Director-General has the authority to determine whether an event constitutes a public health emergency of international concern upon the advice of an “Emergency Committee” of public health experts. That declaration unlocks the Director-General’s authority to issue “temporary recommendations” of urgent measures to prevent or control the international spread of disease. Temporary recommendations are not binding but represent authoritative guidance and enhance accountability by requiring States going beyond them to justify their actions. Before the Ebola outbreak, the WHO Director-General declared a public health emergency and issued temporary recommendations in the case of the pandemic of H1N1 influenza in 2009, as well as in May 2014 with regard to the spread of poliomyelitis.
Public Health and International Security: Historical Dimensions
Consistent with the “all-hazards approach” of the IHR (2005), the WHO Constitution contains a strong reference to the interdependence of global health and the attainment of peace and security, a connection that WHO has explored in its work.
Nevertheless, until the end of the Cold War, global health protection and the maintenance of international peace and security were seemingly “distant strangers.” Existing arms control treaties were not concerned with the public health impact that the use of weapons would have on affected populations. States parties to the Biological Weapons Convention, for example, merely undertook to assist one another if the Security Council had decided that a party “had been exposed to dangers as a result of violation of the Convention.” Likewise, the earlier International Health Regulations, with their traffic and trade protecting purpose, did not concern themselves with the international security dimension of disease outbreaks.
The idea of interdependence between public health protection and the maintenance of peace and security gained traction after the end of the Cold War. The diminished threat of inter-state armed conflicts allowed consideration of “non-traditional” security threats, including disease outbreaks, and an increasing emphasis on the anthropocentric notion of “human security”.
Public Health and International Security in the United Nations
The emergence of a discourse concerning non-traditional threats to international peace and security is reflected in the practice of the Security Council. Prominent and controversial examples of the Council`s broadened understanding were its resolutions regarding the internal situations in Somalia, Bosnia and Herzegovina, and Haiti in the early 1990s. More recently, the increasing “multidimensionality” of peacekeeping operations has strengthened the Council’s broadened notion of peace and security. The open debate held by the Council in January 2000 on “The situation in Africa: The impact of AIDS on international peace and security” was a milestone. While the Council eventually shied away from classifying HIV/AIDS as a threat to international peace and security, it linked the mandates and training of peacekeeping operations to the prevention of the spread of HIV/AIDS.
The 2004 report of the High-level Panel on Threats, Challenges, and Change, convened by the UN Secretary-General in preparation for the 2005 World Summit, marked a conceptual turning point in the securitization of health. It envisaged, in particular, cooperation between the Security Council and WHO in enforcing, under Chapter VII of the UN Charter, effective quarantine measures. The UN Secretary-General, in his 2005 report In Larger Freedom, was said to be “ready, in consultation with the Director-General of [WHO], to use my powers under Article 99 of the Charter of the United Nations to call to the attention of the Security Council any overwhelming outbreak of infectious disease that threatens international peace and security.” The 2005 World Summit Outcome was more cautious, yet still called for a full implementation of the revised IHR (2005). At the 2011 Security Council meeting on new challenges to international peace and security and conflict prevention, the Secretary-General mentioned “pandemics” as one of the three defining challenges of our time.
Security Council Resolution 2177 and General Assembly Resolution 69/1
The Security Council’s determination “that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security” points to Chapter VII of the Charter as the legal basis of resolution 2177. However, that statement is confined to the preambular part of the resolution, and the Council took no enforcement action under Chapter VII. Resolution 2177 represents the most cogent recognition to date of the security implications of widespread outbreaks of lethal infectious diseases. At the same time, it shows the conceptual and political conundrum of using Chapter VII as a tool to mobilize international health interventions. On the one hand, the Ebola outbreak could undeniably lead to the collapse of the economies and political institutions of the affected countries, destabilizing the entire region; on the other hand, enforcement action in this case cannot be directed against particular “targets,” and the practical value of enforcement actions squarely placed under Chapter VII seems questionable.
Compliance with the WHO Director-General’s temporary recommendations to WHO Member States under the IHR (2005) regarding the Ebola outbreak has been uneven, especially with regard to the recommendation to avoid generalized border closures and suspension of commercial flights. The Security Council also mentions the IHR (2005) twice in resolution 2177. In operative paragraph 9, for example, the Council “urges” Member States to implement the temporary recommendations issued under the IHR (2005). On October 14, 2014, Council members “recalled the [IHR (2005)], which aim to improve the capacity of all countries to detect, assess, notify and respond to public health threats.” The Council has thus provided considerable political support to the IHR (2005) and the temporary recommendations.
UNMEER, as established in accordance with General Assembly resolution 69/1, is an innovation in the history of the United Nations: it is neither a “peacekeeping operation” nor a “political mission.” Rather, in the words of the Secretary-General, it is a “United Nations emergency health mission” deployed under his authority. Its functions must be seen in connection with those of other UN entities operating in West Africa. The Secretary-General recently stated in relation to the Liberia sanctions regime that the “epidemic has already significantly weakened previously built Government capacity and has the potential to reverse the gains achieved in the national security sector reform process.” UNMIL has also shifted its focus to urging leaders and political actors to seek agreement in order to make progress in protecting public health and to ensuring that state-of-emergency measures taken in response to the outbreak “do not extend beyond the absolutely necessary tasks of such an emergency.” Peacekeeping operations in Côte d`Ivoire and Mali are similarly undertaking extensive preparations to respond to a potential outbreak of the epidemic. In this context, UNMEER assumes a coordinating function for UN entities that operate in the outbreak area.
It is too early to assess the normative value and impact of the Council and Assembly resolutions. Arguably, they may be seen as the culmination of a trend towards “securitization” of global health in the United Nations system and as a continuation of the Council’s generally broadened understanding of international peace and security. The maintenance of international peace and security and the protection of public health converge to a hitherto unknown extent in the resolutions. The actions by the Council and the Assembly constitute a proportionate response to an outbreak that has grown from a mere public health problem to a multifaceted threat to the stability and development prospects of affected countries and to the international community as a whole. The resolutions establish a functional relationship and distribution of competences, with the United Nations focussing on the international peace and security implications of the outbreak through the Council and the coordination of the Ebola response through UNMEER, and with WHO focussing on the technical side of the response, both through recommendations based on the IHR (2005) and through taking the “health lead” within UNMEER.
About the Authors: Gian Luca Burci is the WHO Legal Counsel and Adjunct Professor of International Law, Graduate Institute of International and Development Studies, Geneva. Jakob Quirin is an Associate Legal Officer with the WHO Office of the Legal Counsel. The opinions expressed in this Insight are those of the authors and do not necessarily reflect the views of the World Health Organization.
 See WHO Ebola Response Team, Ebola Virus Disease in West Africa — The First 9 Months of the Epidemic and Forward Projections, 371 New Eng. J. Med. 1481 (2014). WHO provides regular updates on the epidemiological situation and the response to the outbreak at: http://who.int/csr/disease/ebola/situation-reports/en/.
 Press Release, Security Council, Security Council Press Statement on United Nations Office for West Africa, U.N. Press Release SC/11466-AFR/2930 (July 9, 2014), available at www.un.org/press/en/2014/sc11466.doc.htm.
 U.N. SCOR, 7260th mtg., U.N. Doc. S/PV.7260 (Sept. 9, 2014).
 See Press Release, Security Council, Adopting Resolution 2176 (2014), Security Council Approves Three-Month Extension for United Nations Mission in Liberia, with Further Renewal under Review, U.N. Press Release SC/11559 (Sept. 14, 2014), available at www.un.org/News/Press/docs/2014/sc11559.doc.htm.
 U.N. Secretary-General, Identical letters dated 17 September 2014 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council, U.N. Doc. A/69/389–S/2014/679 (Sept. 18, 2014), available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/S_2014_679.pdf.
 U.N. Secretary General, Statement by the Secretary-General on the establishment of the United Nations Mission for Ebola Emergency Response (UNMEER), (Sept. 19, 2014), available at http://www.un.org/sg/statements/index.asp?nid=8006.
 S.C. Res. 2177, U.N. Doc. S/RES/2177 (Sept. 18, 2014) available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2177%20(2014).
 For the original recommendations, see Statement on the 1st meeting of the IHR Emergency Committee on the 2014 Ebola outbreak in West Africa, World Health Organization (Aug. 8, 2014), www.who.int/mediacentre/news/statements/2014/ebola-20140808/en. They have been extended and slightly added to in the meantime at www.who.int/mediacentre/news/statements/2014/ebola-2nd-ihr-meeting/en/ andwww.who.int/mediacentre/news/statements/2014/ebola-3rd-ihr-meeting/en/.
 G.A. Res. 69/1, U.N. Doc. A/RES/69/1 (Sept. 19, 2014), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/1.
 See UN Mission for Ebola Emergency Response (UNMEER), United Nations Global Ebola Response,www.un.org/ebolaresponse/mission.shtml (last visited Nov. 12, 2014); Press Release, WHO Welcomes Decision to Establish United Nations Mission for Ebola Emergency Response (Sept. 19, 2014), [hereinafter WHO Welcomes Decision to Establish UNMEER], available at www.who.int/mediacentre/news/releases/2014/ebola-emergency-response/en/.
 See S.C. Res. 1308, U.N. Doc. S/RES/1308 (July 17, 2000) [hereinafter S.C. Res. 1308]; S.C. Res. 1983, U.N. Doc. S/RES/1983 (June 7, 2011).
 Lawrence O. Gostin, Global Health Law 177 (2014).
 See David P. Fidler, From International Sanitary Conventions to Global Health Security: The New International Health Regulations, 4 Chinese J. Int’l L. 325 (2005).
 World Health Organization, International Health Regulations (2d ed., 2005), available athttp://whqlibdoc.who.int/publications/2008/9789241580410_eng.pdf?ua=1.
 The Preamble to the WHO Constitution states that “the health of all peoples is fundamental to the attainment of peace and security . . . .”
 See, e.g., World Health Assembly, Global Health Security: Epidemic Alert and Response, WHA Res. 54.14 (May 21, 2001); World Health Organization Secretariat, Global Health and Security – Epidemic Alert and Response, U.N. Doc. A54/9 (Apr. 2, 2001); see also World Health Assembly, Global Public Health Response to Natural Occurrence, Accidental Release or Deliberate use of Biological and Chemical Agents or Radionuclear Material that Affect Health, WHA Res. 55.16 (May 18, 2002).
 David P. Fidler & Lawrence O. Gostin, Biosecurity in the Global Age 145 (2008); see also Gian Luca Burci, Health and Infectious Diseases, in The Oxford Handbook of the United Nations 582 (Thomas G. Weiss & Sam Daws eds., 2007).
 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Apr. 10, 1972, 1015 U.N.T.S. 163, available athttp://disarmament.un.org/treaties/t/bwc/text.
 See United Nations Department of Peacekeeping Operations, Handbook on United Nations Multidimensional Peacekeeping Operations (2003), available atwww.peacekeepingbestpractices.unlb.org/Pbps/library/Handbook%20on%20UN%20PKOs.pdf.
 U.N. SCOR, 4087th mtg., U.N. Doc. S/PV.4087 (Jan. 10, 2000).
 See S.C. Res. 1308, supra note 12, at operative para. 3.
 See U.N. Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary-General, ¶ 105, U.N. Doc. A/59/2005 (Mar. 21, 2005), available atwww.un.org/en/events/pastevents/in_larger_freedom.shtml.
 U.N. SCOR, 6668th mtg., at 2, U.N. Doc. S/PV.6668 (Nov. 23, 2011). But see the statement by WHO Director-General, Margaret Chan, id. at 7.
 Press Release, Security Council, Security Council Press Statement on Ebola, U.N. Press Release SC/11602 (Oct. 15, 2014), [hereinafter SC Press Statement on Ebola], available at www.un.org/press/en/2014/sc11602.doc.htm.
 See United Nations Department of Peacekeeping Operations, United Nations Peacekeeping Operations Principles and Guidelines (“Capstone Doctrine”) 8 (2008), available at http://pbpu.unlb.org/pbps/library/capstone_doctrine_eng.pdf;Michael W. Doyle & Nicholas Sambanis, Peacekeeping Operations, in The Oxford Handbook of the United Nations 323 (Thomas G. Weiss & Sam Daws eds. 2007).
 U.N. SCOR, 7268th mtg., at 3, U.N. Doc. S/PV.7268 (Sept. 18 2014).
 U.N. Security Council, Letter dated 29 September 2014 from the Secretary-General addressed to the President of the Security Council, at 2, U.N. Doc. S/2014/707 (Sept. 29, 2014). See also WHO Welcomes Decision to Establish UNMEER,supra note 10.
 U.N. SCOR, 7279th mtg., at 6, U.N. Doc. S/PV.7279 (Oct. 14, 2014).
 Id. at 6–7.
 See SC Press Statement on Ebola, supra note 27 (“[Council members] requested that the Secretary-General help to ensure that all relevant United Nations system entities, including the United Nations peacekeeping operations and special political missions in West Africa, within their existing mandates and capacities, collaborate closely and urgently to respond to UNMEER`s requests . . . .”).