Sirleaf: Responsibility for Epidemics

Matiangai V.S. Sirleaf (Univ. of Pittsburgh - Law) has posted Responsibility for Epidemics (Texas Law Review, forthcoming). Here's the abstract:

Epidemics are the result of the actions of multiple actors, which necessitates a comprehensive allocation of responsibility. However, the traditional framework for responsibility, as well as the emerging norm of the responsibility to protect, are inadequate for addressing epidemics. Both perpetuate the fallacy that states can, on their own, cope with the increased incidence of epidemics and fail to adequately allocate responsibility.

Given these limitations, this Article argues for a new vision of responsibility. It develops the theory underlying the norm of common but differentiated responsibility and makes the case for expansion of this framework to the challenges posed by highly-infectious diseases. This Article articulates the distinctive normative bases for differentiating responsibilities based on need, culpability, and capacity. The framework developed herein better distributes responsibility and is less state-centric than rival norms. It accounts for structural inequality in ways that other frameworks do not. Further, it does not reify the false hierarchy between civil and political rights and economic and social rights that exists in other frameworks. It recognizes and accounts for the significant role of non-state actors and provides a basis for holding such actors responsible, as opposed to the non-attribution of responsibility that exists.

There is reason for cautious optimism about the prospects of success of this framework. First, it is consistent with theoretical and existing foundations of law where responsibility is tethered to an actor’s conduct and relationship to the harm through culpability. However, the framework does not treat the culpability model as a legal straitjacket and envisions a broad understanding of causation—direct, indirect, and historical. Additionally, the framework differentiates based on capacity, which is derived from human rights and global public health law. It also draws on extralegal incentives, building on moral and political conceptualizations of responsibility towards those in need. The common but differentiated responsibility framework is likely to gain approval and assist rapidly with the battle against epidemics. In fact, elements of it are already reflected in state practice. In sum, the theoretical framework developed in this Article serves not only to provide useful guidance to actors in the face of epidemics but also to shift extant conceptualizations of responsibility in significant ways.