Péter Marton 
Tamás HoffmannIn the context of the SARS-CoV-2/COVID-19 epidemic, over the course of the last several months, individual states and the World Health Organization expressed varying opinions about what constitutes good practice and responsible conduct in handling a pandemic of this kind. As World Health Organization (WHO) Secretary-General Tedros Adhanom Ghebreyesus reiterated in his daily press briefing on March 16, 2020: “Countries must test. They can't fight this blindly. They need to find cases and isolate them. (...) They must be able to test all suspected cases.” That is exactly what many countries either fail to do or do not even strive to accomplish, even as they are already relaxing restrictive measures aimed at curbing the epidemic.
Introduction: State negligence in disease prevention
After the People’s Republic of China was rightly criticized for failing to immediately act in a decisive manner to contain the outbreak in Wuhan and Hubei Province, the spread of the SARS-CoV-2 virus was made possible at least in part by a short-sighted approach to testing for cases of infection in countries that eventually imported the disease, whereby only persons arriving from certain areas (such as Hubei province in China) or with knowledge of a confirmed infected close contact could be tested. This practice persisted long after the arrival of infected persons could be anticipated from other areas.
It is important therefore to underline that the responsibility called for in the context of epidemic/pandemic response entails acting against the emergence of negative external costs that negligent conduct may otherwise impose on other countries. This is clearly what is dictated by the basic considerations underlying the International Health Regulations, and the duty stemming from them to actively, and in a timely manner, address the threat of the international spread of disease and other health risks.
It is concerning, in this light, that this responsibility seems to be stubbornly ignored by a number of countries where authorities are not attempting to thoroughly keep track of so-called milder cases of infection, either as a matter of policy, or in effect, as an implication of clearly inadequate testing and contact-tracing capacity. As WHO Secretary-General Tedros Adhanom Ghebreyesus reiterated in his daily press briefing on March 16, 2020: “Countries must test. They can't fight this blindly. They need to find cases and isolate them. (...) They must be able to test all suspected cases.”[1] Without the ambition to test, identify, isolate and trace every case, countries are in fact acting blindfolded, hoping that the impact of restrictive measures, including shelter-in-place orders (already relaxed in many countries at the time of writing this), will bring the spread (R0) of the epidemic down to below 1, i.e., a level at which the epidemic cannot sustain itself.
The consequences of the lack of comprehensive testing and contact-tracing are manifold. Mild or asymptomatic carriers transmitting the infection may cause severe cases of disease in others. Further, persons affected by a mild form of COVID-19 may transmit the infection to a potentially greater number of people than those hospitalized with severe illness, as they may come into contact with more people across greater distances (including via international travel). Showing no interest in keeping track of, and, if possible, cutting, all chains of transmission questions what the overall approach is to handling the epidemic: whether it is one of merely slowing it down without substantially “flattening the curve” of the number of active cases, or one that is actually interested in either stopping the spread (containment) or at least flattening the curve (mitigation). Extraordinary restrictive measures, including social distancing and institutional closures, are required to decrease the growth of the number of new infections, but these may be in vain if insufficient active effort is made at the same time to bring the epidemic to an end, thus maintaining and elongating the need for the abovementioned highly disruptive restrictive steps aimed at “contact reduction”, i.e. the reduction of the number of encounters between people during the course of which those susceptible may be infected.
Recently, some authorities have expressed an interest in reaching a condition where the population’s “herd immunity” (borrowing a term used to describe a condition typically achieved by vaccination-based immunization programs) could provide for a natural firebreak against ongoing widespread transmission. This indeed may be the only option we are left with if insufficient testing is carried out and milder cases are excluded from testing. The value of this approach is questionable, however, with a view to a number of factors. Such is the suffering this would entail in terms of case fatalities, hospitalizations, lost income, possible lasting damage to individual health in those affected (e.g. in the form of pulmonary, cardiac, vascular and renal damage), and lost access to health services required unrelated to the epidemic, inter alia, as well as with a view to the possible lack of long-lasting acquired immunity against SARS-CoV-2 infection and the currently unknown date by which a working vaccine may become available.
Should there emerge no long-lasting immunity in those who have recovered from infection, nothing resembling herd immunity may be reached — even if a considerable part of the overall populace is infected. Moreover, once several countries decide to follow this route, even as other countries are still trying to make an effort to capture all cases of infection, the efforts of the latter may be ultimately undermined.
The Responsibility to Protect principle
The Responsibility to Protect (R2P) principle is an attempt to reconceptualize responsibility for human rights. The concept was coined originally in 2001 by the International Commission on Intervention and State Sovereignty (ICISS),[2] an independent panel of experts set up by the Canadian Government, but it gained universal recognition from states when it was incorporated into the 2005 United Nations World Summit Outcome document adopted by the United Nations General Assembly. The document reaffirmed states’ responsibility to protect their citizens from grave human rights violations, namely: genocide, war crimes, ethnic cleansing and crimes against humanity. It is noteworthy that even though the responsibility alluded to primarily belongs to states with a view to their own respective populations, the concept also establishes the responsibility of the entire international community. This could entail the application of coercive measures against state parties in breach of their responsibility to protect.[3]
Regardless of the narrow scope of the responsibility to protect doctrine adopted at the World Summit, it is important to emphasize that the original concept envisaged a much broader pertinence. The ICISS Report extended it to “overwhelming natural or environmental catastrophes, where the state concerned is either unwilling or unable to cope, or call for assistance, and significant loss of life is occurring or threatened.“[4] Over the years, there have been attempts to extend the concept of states’ responsibility to protect populations to other contexts. For instance, in the spring of 2008, after Cyclone Nargis struck Myanmar and the government refused to immediately grant access to aid agencies to the affected areas, French Foreign Minister Bernard Kouchner argued, echoing the view of many, that authorities in Myanmar are causing massive and deliberate suffering and that, hence, an international intervention, with authorization from the United Nations Security Council, should not be ruled out, relying on the Responsibility to Protect principle.[5]
In the wake of the 2015 refugee crisis, there were calls to respect the R2P principle with a view to war refugees, uprooted from Syria and Iraq.[6] There have also been suggestions that the Responsibility to Protect should apply to the case of “climate refugees”, in an interpretation of the right to asylum that is broader than the one put forward by the 1951 Convention Relating to the Status of Refugees. A recent decision of the United Nations Human Rights Committee might support this view. The Committee held in a case involving Ioane Teitiota of Kiribati, a deportee from New Zealand, that states have a “responsibility (…) to take into account in future deportation cases (...) new and updated data on the effects of climate change and rising sea-levels”, effectively invoking such a responsibility with a view to all states deporting asylum-seekers to areas where their survival may be threatened for climate-related reasons.[7]
The need for a broad interpretation of the Responsibility to Protect in the present crisis
We consider the above developments important, and we argue that the Responsibility to Protect ought to be considered for application in the field of public health, where this extensive reading would be in line with states’ commitment to provide for Universal Health Coverage, i.e. the full range of essential health services, from health promotion to prevention, treatment, rehabilitation, and palliative care. In fact, the lack of such an interpretation is perplexing in the light of a conservative semantic interpretation of the notions of “responsibility” and “protection”, and it risks to undermine the integrity of the doctrine of R2P based on deontological grounds, as it may be an untenable position to argue that states have a responsibility to prevent harm of one kind, but no such responsibility to prevent harm of another kind.
This is important even as we should not lose sight of the fact that the concept of R2P was created to protect civilian populations from massive human rights violations — but so in order to embrace the victims’ point of view and interests, and as a general “duty to care”.[8] A broad interpretation of the duty to care is supported by the United Nations Human Rights Committee’s recent opinion emphasizing that “The duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include… the prevalence of life-threatening diseases...”[9] We believe that the SARS-CoV-2/COVID-19 epidemic offers powerful validation of this view.
Certain countries may be tempted in the future to give up restrictive measures aimed at social distancing, in the hope of avoiding damages to their economies. The argument related to this is that this may save lives endangered by loss of income due to economic inactivity. While this is certainly a complex issue, it is worth noting that such a change in policy may, beyond an immediate lethal effect in the countries concerned, also undermine other countries’ efforts at public health security, and may lead to negative externalities in a context of international interdependence on a global scale. Further, arguments about the economic costs connected to restrictive measures are oblivious to the fact that a failure to stop the epidemic also leads to staggering economic costs, and that the “economic actors” are ultimately people, who have an incentive to avoid dangerous situations even without government regulations to this end; people, who will thus not travel, trade, invest and consume at the levels that would be expected in the absence of the pandemic.
Importantly, such a dilemma, and the related need to choose between a rock and a hard place, could be avoided by investing in upgrading testing and contact-tracing capacity — an investment certainly warranted in the light of the already witnessed public health fallout of the pandemic.
Conclusion
We argue therefore that the time to invoke a broader interpretation of the Responsibility to Protect is here and now, against a backdrop of very high stakes for global public health, where ill-advised policies, carried out in a misconceived rush to minimise economic damages, could threaten to amplify the impact of an epidemic that we should ultimately work to end as opposed to just mitigate — for anything else promises to be a major historic mistake based on our present knowledge.
Naturally, we do not propose potential military action against countries displaying negligent conduct, but that, at a minimum, the Responsibility to Protect should dictate closer international coordination of policies, based on jointly determined objectives, with a credible commitment to protecting human health, and with burden-sharing arrangements to allocate sufficient resources for effective global response to the current unprecedented situation. Otherwise, the basic credibility of the R2P principle may become one of the many victims of the present pandemic.
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[1] WHO Director-General's opening remarks at the media briefing on COVID-19 - 16 March 2020.
[2] Report of the International Commission on Intervention and State Sovereignty (2001).
[3] UN General Assembly. 2005 World Summit Outcome. A/RES/60/1. paras. 138-139.
[4] Report of the International Commission on Intervention and State Sovereignty (2001). 33.
[5] Cohen R. The Burma Cyclone and the Responsibility to Protect. Brookings Institution. July 21, 2008.
[6] Coen A. The Responsibility to Protect and the Refugee Crisis. Oxford Research Group. March 9, 2016. https://www.oxfordresearchgroup.org.uk/blog/the-responsibility-to-protect-and-the-refugee-crisis (accessed March 30, 2020).
[7] UN Human Rights Committee. Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016.
[8] Arbour, L. The Responsibility to Protect as a Duty of Care in International Law and Practice. Review of International Studies. 2008; 34(3): 448.
[9] UN Human Rights Committee. General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life. CCPR/C/GC/36
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Készült „A magyar jogrendszer reakcióképessége 2010 és 2018 között (FK 129018)” OTKA-kutatás TK által is támogatott „Epidemiológia és jogtudomány” című projektje keretében.
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.