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Do States Have a Legal Responsibility to Protect At-Risk Populations from Epidemics?

As an emerging norm in international legal contexts, the concept of "Responsibility to Protect" continues to increase in popularity and gain the support of the international community. R2P, as outlined by the 2005 World Summit of the United Nations General Assembly, argues that states have a responsibility to protect vulnerable populations if host states are found incapable of, or neglectful in, doing so. R2P creates a sort of legal loop-hole through which the preservation of human rights in an affected country is considered of paramount importance and essentially overrides the supposed unconditional sovereignty of a state. Traditionally, R2P only suggests state intervention in contexts of genocide, crimes against humanity, war crimes, and ethnic cleansings. However, as the international system becomes even more complex, it is possible that this conventional conception of R2P could be broadened to include the necessity for international intervention when human rights are violated by health crises.

R2P presents a convincing argument in favour of humanitarian intervention in disease outbreaks as it seeks to protect various human rights, such as healthcare, by invoking the assistance of powerful states in the international system. However, legal restrictions can prevent this intervention from occurring. The UN World Summit of 2005, as a General Assembly Resolution, carries no actual legal weight despite its general acceptance by the international community. Technically speaking, the enactment of humanitarian intervention via the Responsibility to Protect is in defiance of international law as it violates Article 2(4) of the UN Charter, which prohibits the use of force on the territorial integrity of another state.

The controversial nature of R2P as a justification for international intervention has continued to spark international debate regarding its legitimacy as a legal practice. Traditionally, most states who have violated the sovereignty of another state claim “self-defence” so as not to appear in violation of the UN Charter’s protocol. However, in recent years, the United Kingdom has cited “humanitarian intervention” as justification for its involvement in Syria, which has ultimately carried great normative weight.

Although R2P and humanitarian intervention, regardless of circumstances, is considered illegal under international law, it is possible that, in the following decades, this concept will be established as an international norm. Through continued popularisation, R2P will constitute customary law and can eventually be legalised. Working its way to international acceptance through the formation of customary law, R2P could potentially hold great implications for the responsibility of more powerful states to prevent human rights violations in areas affected by widespread disease.

Following the SARS outbreak of 2003, the global community attempted to coordinate a universal response This prompted the World Health Assembly's Revision of the International Health Regulations in 2005 with the goal to prevent and control the international spread of disease whilst avoiding interference with international movement and trade. These regulations emphasise the importance of global cooperation in achieving the early mitigation of health emergencies. They also require that each state develop various means to report and respond to these public health crises. In the past decade and a half since the SARS epidemic of 2003, the international community has expressed fears of states’ ability to curb emerging outbreaks. This has challenged the traditional view of sovereignty as paramount and undermined arguments in favour of complete sovereignty.

For instance, an outbreak of Cholera in 2008 affected several regions of the world, including Africa, Latin America, and South-East Asia. The disease was widespread throughout Zimbabwe and the international community recognised the country’s inability to comply with their sovereign duty to prevent, control, and contain the outbreak within their borders. Due to this perceived failure, Zimbabwe was eventually persuaded to recognise their limitations in protecting their population and accept offers of assistance from other states.

This highlighted the legitimate role of the international community in assisting in such scenarios. The acceptance of international aid by Zimbabwe to mitigate a public health emergency potentially carries great normative power for the presence and legitimacy of R2P in response to health crises. As R2P continues to become more common and widely accepted by the international community through its incorporation as customary law, it widens the scope of what global society classifies as “humanitarian intervention”.

It is useful to draw a comparison between past global health crises and the ongoing COVID-19 pandemic as states attempt to create calculated responses to minimise its impact on their populations. The COVID-19 outbreak has similarly called upon the need for humanitarian intervention. Larger states with more established healthcare systems, such as Australia or the UK, have evidently been more successful in curbing the spread of the virus than developing countries in Latin America or Sub-Saharan Africa. Do these larger states, with extensive medical equipment and expertise, have a responsibility to assist countries unable to effectively protect their citizens from harm?

As with both the SARS and Cholera outbreaks of the 2000s, the international system continues to encourage large-scale cooperation, citing the priority of the preservation of human rights wherever possible. Despite its current "illegal" nature in international law, as the concept of R2P continues to gain international legitimacy for its focus on the importance of human rights preservation. It is therefore not preposterous to assume that in the following decades, the international community will accept the validity and eventual legality of humanitarian intervention for the purposes of mitigating public health emergencies. This would allow stronger states to intervene in the event that a devastating health crisis cannot be effectively mitigated by the host state.


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