Document Type

Article

Disciplines

International Law

Abstract

Pandemics have plagued civilization since the dawn of time, with contagious diseases responsible for killing hundreds of millions of people in the last century alone. In choosing victims, pandemics spread and kill without respect to national borders; therefore, any effective counter to pandemics demands an international response. Indeed, a significantfactor in containing pandemics of the last thirty years such as SARS, Ebola, influenza, cholera and the pneumonic plague has been the rapid response and cooperation of the international community in providing assistance to the infected State. This indispensable international cooperation, however, demands that the international community offers the assistance AND that the infected State accepts the assistance. If a State refuses international assistance, no mechanism is currently available to force the infected State to accept the aid essential to controlling a pandemic and preventing global infection.

Under the current international health paradigm, a number of reasons exist explaining why States might deny an outbreak in their borders or subsequently refuse international assistance. Without consent to enter the infected State, the international community cannot compel assistance without violating the territorial sovereignty of the infected State. If a pandemic occurred in a country that refused to accept international assistance or was incapable of effectively implementing or distributing such aid, the pandemic would likely spread throughout the infected State unchecked, posing a tremendous threat to the health and well-being of the global population. This article argues that several existing international law norms could be interpreted to confront a pandemic without consent of the infected State. Arguably, Chapter VII of the U.N. Charter could be used to compel an infected State to accept international assistance by the use of force, if necessary. However, even if Chapter VII is legally a valid option under international law, Chapter VII resolutions are politically vulnerable to veto; therefore, two alternative approaches are also explored. First, an Article 25 plea of necessity stemming from the International Law Committee's (ILC) Articles on State Responsibility, and second humanitarian intervention. These alternatives have the potential to be used as an excuse for noncompliance with international law, and are explored as alternatives to action under Chapter VII.

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