04 Apr COVID-19 Symposium: Will the UN Security Council Act on COVID-19?
[Craig D. Gaver and Nishadee Perera are LL.M. Candidates at Columbia Law School. The authors write only in their personal capacity; the opinions expressed herein are not attributable to the author’s employers or affiliated organizations.]
Since the novel coronavirus first appeared in December 2019, the virus and ensuing illness, known as COVID-19, has commanded the world’s attention. For the international legal community, much of the attention has been devoted to the World Health Organization (WHO)—and rightly so. The WHO holds the central and historic responsibility for the global regime that responds to the international spread of disease. All eyes were upon the WHO as it pulled the trigger on 30 January 2020, declaring the virus a ‘public health emergency of international concern’ (PHEIC). That decision, fraught with legal significance, was followed by the declaration of ‘pandemic’ on 11 March 2020. Although the latter declaration holds less legal significance, it resonated more strongly with the general public.
The WHO drew its authority from the International Health Regulations (IHR 2005), which, in the words of former WHO Legal Counsel Gian Luca Burci, was a ‘radical change from previous versions’ of the IHR, moving from a passive approach relying on a list of diseases and strict national measures to a fluid, more interconnected approach. Under the IHR 2005, the ‘WHO plays a central role in surveillance, risk assessment and response and aims at ensuring an effective but proportional public health response to avoid unnecessary interference with traffic and trade’. WHO Member States are obligated to cooperate in good faith with each other and the WHO in detection, notification, and taking measures in response to certain health events.
But another actor has been missing so far from the response: the UN Security Council. The Security Council is tasked with primary responsibility for the maintenance of international peace and security, generally characterized as armed conflict, and has a broad array of tools at its disposal in pursuit of that mandate.
Despite that general characterization, the Security Council creatively expanded that mandate in September 2014 in the wake of the Ebola crisis in West Africa. UNSC Resolution 2177, for the first time, characterized a public health issue—more specifically, a communicable disease—as a threat to international peace and security.
The Resolution’s Preamble went to great lengths to explain why this was so:
- the Ebola outbreak spanned national borders;
- it threatened to undermine ‘the stability of the most affected countries’ and could have led to ‘civil unrest, social tensions and a deterioration of the political and security climate’;
- it had a ‘particular impact’ on women;
- ‘the outbreak may [have] exceed[ed] the capacity of the governments concerned to respond’; and
- there was concern about ‘the impact, including on food security, of general travel and trade restrictions’.
Accordingly, the Security Council underscored the need for enhanced and coordinated regional and international responses due to the unique nature of the threat.
The operative parts of Resolution 2177 undertook the following acts, among others:
- encouraged the governments of the affected States to accelerate national mechanisms for diagnosing, isolating, and treating patients, as well as protect health workers and first responders and promote public health education;
- encouraged the governments of the affected States to ‘mitigate the wider political, security, socioeconomic, and humanitarian dimensions of the Ebola outbreak’;
- called upon all UN Member States ‘to lift border restrictions, imposed as a result of the Ebola outbreak… and airlines and shipping companies to maintain trade and transport links with the affected and the wider region’;
- called upon Member States, acting individually and in multilateral organizations, to provide personnel, technical expertise, and supplies to fight the outbreak; and
- urged Member States to ‘implement relevant Temporary Recommendations issued under the International Health Regulations (2005) regarding the 2014 Ebola Outbreak in West Africa’.
The Resolution also indirectly led to the creation of the United Nations Mission for Ebola Emergency Response (UNMEER).
Perhaps the most telling word used in the entire Resolution appeared in the Preamble: ‘unprecedented’. This description was true not only of the extent of the Ebola outbreak, but of the Resolution itself.
The novelty and importance of Resolution 2177 do not eclipse the challenges that Security Council action on public health might pose. For instance, while disease outbreaks can threaten international peace and security, it is far more difficult to mandate or proscribe actions by actors than in the case of armed conflict. One shortcoming of this ‘securitization of health’ is that the Security Council can invoke its Chapter VII authority to order States in conflict to stand down; it cannot instruct the same to a virus.
From a public health standpoint, the 2014 Ebola outbreak and the COVID-19 outbreak differ in important ways. Ebola has a higher mortality rate; COVID-19 is much less lethal and indeed often asymptomatic. The 2014 Ebola outbreak affected an especially vulnerable part of the world, but containment efforts were ultimately successful; yet COVID-19 is a true pandemic and is still racing its way around the world, affecting different States and societies differently.
By other measures, COVID-19 is objectively worse. Despite a lower mortality rate, the virus has killed more people in a few short weeks than all Ebola outbreaks ever have. The insidious danger of the disease is that it can overwhelm national health care infrastructure, forcing health care practitioners to make the most difficult decisions as to how to allocate scarce resources. To slow the speed of transmission by ‘flattening the curve’, and thus trying to ease the burden on health care facilities, States have taken significant measures to curtail travel and public interaction. This, in turn, has caused large parts of the global economy to grind to a halt while citizens in many countries engage in quarantine, voluntary or otherwise.
Given the global threat to international peace and security posed by COVID-19, especially in light of the Ebola precedent, there is an arguable case for the Security Council to act. The wisdom in such action lies in asking, what can the Security Council do? The Security Council’s greatest skill in the coordination of global health effort is its ability to create binding obligations upon UN Member States and thereby corral recalcitrant Member States. The WHO has already seized the moment, yet Member States are often acting unilaterally in response to the individual circumstances in their domestic jurisdictions. To the extent that individual Member States do not cooperate in the sharing of scientific information or medical and humanitarian aid in the WHO context, the Security Council could play a valuable role in giving the WHO efforts greater heft. As a general matter, the Security Council could emphasize ‘the role of all relevant United Nations System entities’ in support of the WHO’s mission during the Ebola outbreak. More specifically, it could convert WHO recommendations to Member States into prescripts of a binding Resolution.
To the extent that Member States are loathe to act in concert, the Security Council could instruct their cooperation as envisioned by Article 48 of the Charter. To the extent that their actions risk violating or failing to honor other international legal obligations or norms, such as health, trade, or aviation regulations or treaty regimes, the Security Council can invoke the supremacy of the Charter as embodied in Article 103 and the obligation to follow the Security Council’s decisions per Article 25.
Unlike the Ebola case, it is unlikely that Member States would, or indeed should, unwind the travel restrictions or border closures that have been imposed. As time goes on, however, different States will recover at different rates, perhaps while others are still in the throes of the virus. As such, calling on Member States to unwind such measures at that time to prevent isolation may be necessary to prevent an inequitable distribution of recovery. In that vein, the Security Council could move proactively to ameliorate the worst effects of COVID-19 on the global financial system through targeted aid or coordinating with the major international financial institutions. In a more creative turn, the Security Council could ‘pierce the State veil’ to call on private multinational manufacturing industries to provide and distribute necessary medical supplies, namely personal protective equipment, or eventual vaccines to other States where they are needed most. A number of multinational corporations have already announced that they are willing to do so. This would blunt the temptation by States with strong manufacturing capabilities to act solely in their self-interest at the expense of less developed States.
The more creative the solution, the more political capital is needed to act. Any Security Council action, of course, requires the cooperation of the Permanent Members (P5). China held the rotating Security Council presidency during the month of March 2020. Certain Chinese officials have accused the US Army of creating and disseminating the virus (to the contrary, international medical officials are confident in how the virus first appeared in Wuhan), while US President Trump, in turn, has taken to calling the virus and disease the ‘Chinese virus’. Any Resolution text would therefore have to be sufficiently anodyne so as to not risk a veto from any of the P5. Although the Dominican Republic assumed the rotating presidency during the month of April, this concern remains.
Will the Security Council act? The answer is not clear at present. Many high-ranking diplomats have fled New York. (In fairness, these authors have too). Yet, Article 28 of the Charter requires the Security Council to ‘be so organized as to be able to function continuously’ and empowers it to meet at places other than the Headquarters. Following negotiations in late March, the Security Council agreed to new internal procedures, including a twenty-four hour voting period. More contentious was the issue of meeting by video teleconference (VTC). While the Security Council agreed to meet through open and closed VTCs, voting will follow the written process agreed at the written voting procedure agreed in late March. These procedural changes, though minute in comparison to a substantive resolution, might prove to be significant to the Security Council’s overall working methods in the long run. Nevertheless, reconvening under the specter of COVID-19 does not guarantee that the Security Council will address COVID-19. The Security Council has an unfortunate but unique opportunity to build upon a novel legal foundation and demonstrate the functional value of an oft-criticized institution. Whether it will decide to act, and in what form that response will take, remains to be seen.