Ebola will be a Chapter VII issue

Right now, the Ebola virus is spreading across the Africa, and the ability of the most affected states – Sierra Leone, Liberia, and Guinea – to stop and contain the virus is very much in doubt. Although only a few cases have been reported in the United States and Europe, it is clear that it will be impossible to completely avoid disease transmission here.

Furthermore, it is also clear that the healthcare systems of Spain and the United States have been incapable of correctly handling cases so as to prevent transmission of the disease. In the U.S., for example, the healthcare system was unable to correctly contain an outbreak that initially started with just one patient. Imagine what would happen if the United States were facing 1000 cases of Ebola. Although clearly the U.S. has more resources to deal with such a scenario than, say, Sierra Leone or Liberia, the current cases do not inspire confidence.

One of the factors leading to the spread of Ebola is the high mobility of today’s populations. We no longer live in one city or even one country. We move around. Once Ebola changed from a rural virus to an urban disease, it became that much easier for the disease to reach epidemic levels.

The other reason the disease spread so quickly is that the governments of Liberia, Sierra Leone, and Guinea responded inappropriately to the outbreak. They did not put in place the required measures to identify and isolate potentially infected Ebola patients. Also, medical personnel did not – and in many cases still do not – have access to the necessary protective equipment to prevent them from contracting the virus and, in turn, passing it along to others. The failures here run deep and are systemic.

The outbreak will cross international borders, potentially overwhelming national healthcare systems, and causing thousands of deaths. Experts have already predicted that, absent appropriate intervention and global resources, by the end of November the outbreak could claim as many as 10,000 new infections each week. Imagine what the weekly infection rate will be in January, or next June. The infection rate increase exponentially; the numbers are truly frightening.

The media attention to the disease has been schizophrenic. On the one hand, news outlets are reveling in public hysteria over Ebola because it no doubt increases readership and viewership. At the same, the same media outlets run stories or commentaries decrying the public hysteria as irrational and disproportionate to the level of threat. The latter is incredibly unhelpful because it ignores the fact that many governments, in both Africa and even the United States, have under-reacted to the threat and therefore missed the boat with regard to early containment. I think much of the public hysteria is warranted and rational because the government has done insufficient planning for a worst-case scenario situation.

All of this adds up to a situation that may very well threaten international peace and security. The director of the W.H.O. has already said as much, although I’m not sure if she was aware of the legal consequences of this statement. In any event, I am aware of the legal consequences, and I do believe that Ebola may become a threat to international peace and security.

Once that happens, the Security Council will have the authority under Chapter VII to declare Ebola a threat to international peace and security and to authorize measures to repair the breach. Those remedies could include outside interventions in effected countries even in the absence of local government consent. The time might come when outside governments need to do more than offer assistance; they might need to take control over the response, not just because of a humanitarian obligation but also from collective self-interest. The way to defeat Ebola will be to take the fight to Africa rather than sit back and wait for it to come here.

This issue doesn’t line up as Africa versus the rest of the world. The countries with the greatest interest in seeing a more intrusive global response are the African nations that border on the outbreak but have so far remained Ebola-free. If the outbreak spreads, they will be the hardest hit and it is their interests that would be most vindicated by a global intervention. An uncontained outbreak in Sierra Leone, Liberia, and Guinea is a disaster for their African neighbors.

Outside intervention would infringe the sovereignty of the host governments, but with a Chapter VII enforcement resolution from the Security Council, those putative violations of sovereignty would be lawful and consistent with the U.N. Charter.

I hope none of this becomes necessary. I hope the Ebola outbreak is contained and eliminated next week. I hope one of the vaccines proves effective and the whole world gets the vaccine by January. But there is no rational reason for optimism. Disaster planning requires preparing for the worst. If Ebola lingers and spreads, it makes sense to think now of the appropriate global response, the role of the U.N. and the Security Council in leading that response, and the structure of a legal argument that would justify intrusive interventions.