Ebola Does Not Fall from the Sky: Structural Violence & International Responsibility.

• Author: Sirleaf, Matiangai

TABLE OF CONTENTS I. INTRODUCTION 479 II. THEORETICAL & LEGAL FRAMEWORK 483 A. Conceptual Framework: Structural Violence 483 B. Legal Framework: International Law 489 III. WARS DECLARED AND UNDECLARED & THE EBOLA EPIDEMIC 490 A. Guinea, Liberia & Sierra Leone before Ebola 491 1. Underdevelopment in the Sub-Region 491 2. Conflict in the Sub-Region 497 3. Post-Conflict Reconstruction in the Sub-Region 499 B. Guinea, Liberia & Sierra Leone in the Time of Ebola 503 1. Ebola's Trajectory in the Sub-Region 504 2. Post-Conflict Legacies & the Ebola Epidemic 507 3. Ineffectual Local Responses to Ebola 508 IV. THE INTERNATIONAL REGIMES FOR HEALTH AND SECURITY & THE SPREAD OF EBOLA 513 A. International Health & the Regulation of Highly Infectious Diseases like Ebola 513 1. The WHO's Emergency Powers 514 2. The WHO's Failure to Manage the Ebola Epidemic 516 a. Declaring an Emergency 516 b. Explanations for the Botched Response 519 c. Responding to Failure 523 B. International Security & the Regulation of Highly Infectious Diseases like Ebola 526 1. United Nations' Emergency Powers 526 2. International Peace and Security Regime's Response to Ebola 528 a. United Nations Security Council 529 b. United Nations General Assembly 535 c. Regional Organizations 537 d. Individual States 538 V. THEORETICAL & POLICY IMPLICATIONS 540 A. The Limits of International Responsibility 540 B. Complex Relationship between Infectious Diseases & Conflict 545 C. International Disaster Law & Responding to Epidemics 548 VI. CONCLUSION 552 I. INTRODUCTION

Today, infectious diseases cause approximately 25 percent of all deaths around the world, (1) and over thirty infectious diseases have emerged during the last twenty years. (2) Due to the increasing interconnectedness of the world, the need for effective international regulation of highly infectious diseases cannot be overstated, especially for developing countries in the Global South. (3) As Jim Yong Kim, President of the World Bank (WB), remarked, the "Ebola crisis in Guinea, Liberia and Sierra Leone taught all of us that we must be much more vigilant to outbreaks and respond immediately to save lives and also to protect economic growth." (4) Indeed, recent economic studies indicate that the annual cost of moderate to severe pandemics globally is roughly USD 570 billion. (5) Moreover, threats to global public health pose significant challenges for human security, (6) which underscores the need for effective international regulation of pandemics.

The Ebola epidemic laid bare the weakness of global mechanisms to respond adequately to public health crises. Ebola is an infectious disease that manifests as a severe hemorrhagic fever, which is often fatal without proper clinical care, such as providing fluids and maintaining blood pressure and oxygen levels. Because the early symptoms resemble common diseases like malaria, many do not realize they are infected and do not seek treatment at a hospital. The virus is spread in humans through direct contact with broken skin, blood, bodily fluids, or contaminated objects, and possibly through sexual contact. (7) Between 2014 and 2015, West Africa had the largest outbreak of the disease in history. (8) The World Health Organization (WHO) estimates that this outbreak resulted in 28,616 cases of Ebola, and 11,310 deaths in Liberia, Sierra Leone, and Guinea alone. (9) Yet the comparatively trivial number of cases that occurred in Europe (three) and the United States (four) (10) spurred international action and resulted in large-scale militarized responses. The full toll of the epidemic in West Africa is still being uncovered--with recent reports showing that Ebola can linger in survivors' eyes causing painful disease, cataracts, and potential blindness in the young and old. (11)

This Article argues that the disproportionate distribution of infectious diseases like Ebola is a form of structural violence. Structural violence is a term that is little explored in law but well developed by scholars of development and global public health. Influential peace scholar Johan Galtung argued that structural violence is unique in that the violence is built into the structure and manifests as "unequal power and consequently as unequal life chances." (12) Paul Farmer's work in the field of global public health has been helpful in elucidating the concept of structural violence to the spread of epidemic diseases. (13) This Article draws on the structural violence literature to reveal the ways in which the international legal architecture facilitates the conditions for global health inequities, and in particular for infectious diseases to reach epidemic levels in the Global South. It demonstrates this by utilizing a case study of the 2014-2015 Ebola epidemic in West Africa. The Ebola epidemic reflects the unfortunate pattern where "the fruits of medical and scientific advances are stockpiled for some and denied to others." (14)

This Article addresses gaps in the literature by writing on an epidemic that has received scant attention in legal scholarship. (15) In contrast, there has been much scholarship on other epidemics like HIV/AIDS, (16) Avian Flu, and Severe Acute Respiratory Syndrome (SARS). Moreover, while the concept of structural violence is well established in the fields of development and health, most analyses elide the role of the law in facilitating structural violence. (17) This Article departs from this practice and analyzes how the concept of structural violence can be operationalized in law. It demonstrates how international law and its various actors can facilitate structural violence through analyzing the case study of the Ebola epidemic.

This Article considers the following issues: How is violence conceptualized internationally? When and why do states, international institutions, and other nonstate actors intervene in violent crises? What should such intervention look like? This Article explores these lines of inquiry by examining the global public health and international peace and security regimes' responses to the Ebola epidemic. This Article has many important contributions. First, the way international actors conceptualize crises needs to be expanded beyond merely addressing direct physical violence internationally, but to also include remedying structural violence. Additionally, this Article finds that it is more useful to theorize violence as a continuum--with the narrower end of the spectrum having the minimal conceptualization of violence (direct, physical and psychological) and the other end of the spectrum having the broader conceptualization of structural violence. Moreover, this study of the Ebola epidemic indicates that the complicated relationship between infectious diseases and conflict warrants more robust attention and resources. Finally, shared international responsibility norms should be developed to respond to epidemics more effectively and to assist in addressing the accountability gaps that arise in international law with issues of structural violence.

This Article's analysis of the Ebola outbreak brings into stark focus the illusory international community. It is only when infectious diseases like Ebola come perilously close to impacting countries in the Global North that the international community and its various actors muster the political will to act. The sad reality is that infectious diseases are left to run rampant for years in countries in the Global South where disposable bodies of people of color are disproportionately affected. To be sure, there are a range of domestic factors from inadequate health policies, to corruption, to poor governance, amongst others that help to account for the current distribution of infectious diseases, and there are undoubtedly variations within countries in the Global South. Yet recognizing the existence of a state's duty to address these failures does not preclude "a full investigation into the ways in which international actors can be deeply implicated in the deprivation suffered." (18)

This Article is organized as follows: Part II provides the theoretical framework of structural violence, its contenders, and its use in various fields. Part II also provides the legal framework in international law. Part III analyzes the ex ante factors that enabled structural violence resulting in differential risks for infection and more adverse consequences from Ebola among the impacted countries--Guinea, Liberia, and Sierra Leone. Part IV examines the international regimes for health and security and demonstrates how these regimes facilitated the conditions that worsened the 2014-2015 Ebola epidemic and analyzes their responses to mitigate the harm. Part V discusses the theoretical and policy implications of this study, examining the limits of the law governing international responsibility and the promise of international disaster law to respond to the challenges posed by diseases like Ebola. The ease with which the Ebola virus spread makes this Article timely, and of scholarly and policy interest, both nationally and globally.

2. THEORETICAL & LEGAL FRAMEWORK

   1. Conceptual Framework: Structural Violence

      Violence is traditionally conceptualized as direct physical or psychological violence. (19) Structural violence expands the orthodox view of violence and is used to describe indirect violence that is not necessarily tied to an identifiable human actor. (20) Structural violence complicates conventional wisdom because it does not conceive of violence as spectacular, sensational, or hyper visible. (21) Galtung conceptualized structural violence in the field of peace-building as present "when human beings are being influenced so that their actual... realizations are below their potential realizations." (22) Galtung's conceptualization of structural violence as social injustice is overly broad.

      Paul Farmer improved upon the theory and applied it in the field of global public health. He defined it...