The Covid-19 pandemic has given rise to a whole new discussion in the field of international law and its processes. At the same time, more than the general issues that affect the study of international law, the pandemic has caused a considerable amount of discussions in relation to specific issues relevant to international law, like issues of accountability, immunities and jurisdictional aspects. It has to be noted, as a starting point, that the Covid-19 crisis has been described as a human rights crisis by the United Nations Secretary General who noted that “the Covid-19 pandemic is a public health emergency – but it is far more. It is an economic crisis. A social crisis. And a human crisis that is fast becoming a human rights crisis.” (Antonio Guterrres, Secretary-General of the United Nations, 23 April 2020, Statement before the forty-third regular session of the Human Rights Council, available online at: https://www.un.org/en/un-coronavirus-communications-team/we-are-all-together-human-rights-and-covid-19-response-and).
More than the implications of the various measures that States have taken (unilaterally) to address the current pandemic especially in the field of human rights and the enjoyment of those by people, the present contribution elaborates in a more general way on the implications of Covid-19 to the evolution of international law by examining the stance that the World Health Organization has followed in addressing the pandemic and the international implications of it. As regards this, it has to be stated that, more than the pandemic of Covid-19, those issues need to be discussed having in mind, as an axiomatic principle, the endemic problems of international law.
It has to be stated at the outset, that public health is not only about public health that is considered to be within the absolute notion of State sovereignty and jurisdiction, especially when there is a declaration of a world pandemic that affects other States and raises issues of extra-territorial jurisdiction. Public health, in that context then, should be understood as an international law aspect that needs consideration at an international level and, also, an issue of international community building. In that sense, it has to be noted that United Nations Organization, the principal international organization, was not in the frontline of decision-making or norm-creating functioning in addressing the current crisis. In the contrary, the World Health Organization took the leap and was found in the frontline – probably for the wrong purposes due to the fact that WHO is not a political organ but rather a technical agency dealing with public health issues.
There are various questions that are relevant to the present discussion: For example, was international law prepared for the outbreak of this pandemic? WHO has indeed been warning the international community about the possibility of an outbreak – actually not in the form of “if there would be a pandemic to this magnitude” but in the form of “when there would be such a pandemic.” WHO was preparing on this from various perspectives, mainly through the regulatory framework for dealing with such a pandemic / epidemic. Additionally, WHO has been dealing, not only as a normative organization, but also in the form of setting up an operational aspect of dealing with the outbreak of pandemics. Regulation, however, is about uniformity and shared standards and, having this in mind, a very relevant question is whether this is possible in a world of inequality of access to health services faced in various places of the world? The fundamental question is whether there is scope for more regulation in a world that is so unequal and so diverse. The question is whether universal regulation could do more and what kind of regulation is needed? The answers to the above questions are not straightforward but could be recapitulated in a very simple question: do we need more universal regulation to tackle pandemics and crises like the current one and if so what should be the principles upon which this regulation should be based? In any case we can provisionally suggest that such universal regulation needs to be more strategically oriented taking into account the current state of affairs in international law.
One of the monumental challenges, in these times, is how different public health systems exist within the domestic jurisdictions of countries, not to mention across different countries. The new WHO international health regulations, for example, require States to have what we call ‘core’ capacities, but those are at the minimum level which has proven to be a major drawback in various countries where the pandemic went out of control (see for example Italy, USA, Spain etc). Those regulations are quite intrusive in the sovereignty of the countries but are considered to offer, at least, the minimum requirements for preventing spread, controlling and containing the spread of the new coronavirus.
The international health regulations are not a treaty and are not based on the principle of pacta sunt servanda, as other international law instruments. They are based on the constitution of WHO, on the basis of a unilateral decision of a political organ, where States have the right to opt out. This fact raises various issues in relation to the kind of international obligations, which are relevant when we are discussing the issue of international state responsibility, that they create. In any case, it is also axiomatic that there has to be an element of cultivating responsibility towards adhering to specialized international law instruments, especially those relating to the international health regulations for example, which suffer, anyway, from questions of being binding. It has to be reminded, in any case, that WHO is not a political organization but a technical agency.
International law should be about accountability for violations of its principles. But this issue, especially in relation to holding accountable a State, should be read together with the issue of consent to submitting disputes to an international court. Of course, this has to be also read together with what we call as erga omnes obligations – obligations owned to the rest of the international community. We also need to take into account what are the consequences of holding anyone accountable for breaches of international law – in the current case of holding someone responsible of breaching the international health regulations. Previous examples, like genocide cases, show that the international courts are more prone to provide a declaratory statement for such violations without actually holding accountable, especially in the sense of reparations, a State. It is, in the end of day, an issue of causation – like in criminal law or torts, the but for test. And in the end of the day, a question of proving “who let the bats out” in the present pandemic. The alternative would have been a different forum, than an international one, in the domestic jurisdictions of countries. This however, comes with the problem of State immunities in international law, but then again you will have to prove a nexus between the sovereign activities of a State and those that are of a commercial character that might allow for exceptions to the concept of State immunities. There are various jurisdictional burdens in that direction, but nevertheless there is ground for thinking about this new world order that is being created in international law. There is also the issue of reciprocity when it comes down to using domestic jurisdictions to deal with international law claims – an issue that goes to the heart of the current Westphalian system of international law. Whether this will change or not is a matter to be seen in the process of the constant evolution and the non-static nature of international law.
Finally, there is currently a discussion about the obligations of China vis-à-vis the rest of the international community and whether she had an obligation of informing the WHO according to the international health regulations. But this is fact-based and we need evidence to prove facts. Was there an obligation to notify? Was China late in notifying? Was China in breach of its obligations under the international health regulations? Those questions are ones that need to be examined in the near future, as the pandemic is being isolated and questions like these come to the forefront. The point is how genuine was China when the controversy about human to human transmission arose – but you still need to prove that China knew about that and whether it acted in a negligent way in complying with the provisions of the international health organizations. Still, this issue is a fact-finding issue which requires evidence and monitoring mechanisms that have been proven, on the face of it, to be insufficient. There is not a clear system of compliance and monitoring in the international health regulations so the question is whether those could be strengthened by including a mechanism which detects gaps and fills them in accordingly. There has to be also a mechanism for adapting to pandemics in a quicker way in relation to the spread of pandemics across the world. There are certain questions about the obligations of WHO. Or questions, about WHO’s international responsibilities. Or even questions about whether WHO has complicity, together with China, for not declaring a pandemic at an early stage before it spread across the rest of the world. For sure, in all cases and having in mind the above, there is plenty of ground for improving our international responses to crises. Equally, there is plenty of ground of identifying more endemical problems in the processes of international law that need to be addressed for the benefit of the international community as a whole.