International Law

Note: this section includes literature on:
  • international health law, including the World Health Organisation and the WHO International Health Regulations (IHR). The International Health Regulations 2005 (3rd ed, 2016) are available here.
  • international human rights law
  • international courts
Ajiboye, Oluseyi, ‘COVID-19: Assessing China’s Culpability through International Law’ (SSRN Scholarly Paper ID 3638678, 13 July 2020)

Abtahi, Hirad, ‘The International Criminal Court during the COVID-19 Pandemic’ (2020) Journal of International Criminal Justice Article mqaa058 (advance article, published 21 December 2020)
Abstract : Since COVID-19 was declared a pandemic by the World Health Organization, the International Criminal Court (ICC) has taken a series of measures to ensure the continuation of its activities. To this effect, the Court has adjusted its proper administration both in Headquarters and Country Offices by moving to (partial) virtual offices mode. In so doing, the ICC has striven to ensure that staff well-being and business continuity go hand in hand. On this basis, the Court has worked towards the execution of its mandate, i.e. the prosecution and trial of individuals alleged to have committed one or more of the ICC Statute crimes. Against this background, the Court has had recourse to a combination of technological and sanitary measures in order to conduct pre-trial, trial and appeals proceedings in a fair and expeditious manner. These proceedings have ranged from the execution of arrest warrants and transfer of suspects to the Court’s custody through to the holding of hearings in the courtroom. By adapting itself to the evolving nature of COVID-19 — and reactions to the virus — the ICC will ensure that it remains resilient in the face of this unprecedented global sanitary crisis.

Albader, Fatemah, ‘Coronavirus and the Resurgence of Sinophobia’ (2020) 12(2) Tsinghua China Law Review, 289–312
Abstract: With the outbreak of the coronavirus, the world has witnessed an increase in anti-Chinese sentiment, resulting from racially discriminatory policies undertaken by state governments to combat the spread of disease. States must nonetheless recall that the right to non-discrimination is a non-derogable right, one that is protected even in times of heightened anxiety. States must not impose restrictions that would contribute to the ongoing xenophobia, which is in blatant violation of human rights. Accordingly, this paper will explore and analyze the various government responses that have been undertaken in response to the coronavirus infection and will conclude with recommendations on how best to ensure compliance with the human rights framework during this time.

Alvarez, José E, ‘The WHO in the Age of the Coronavirus’ (2020) 114(4) American Journal of International Law 578–587 (unpublished version of paper available on SSRN)
Abstract: The responses of states and the WHO to the COVID-19 pandemic reveal the considerable weaknesses of international organizations. Although the Trump administration has misdiagnosed the WHO’s ills, the WHO has indeed failed to meet the public health threat posed by the coronavirus. The WHO’s responses to the current crisis demonstrate that it shares five disorders common to other UN system expert-driven organizations: overdependence on states; singular reliance on ‘managerial’ approaches to enforcement; inflexible emergency declarations; absence of regularized systems for inter-regime collaboration; and common bureaucratic pathologies.

Askary, Pouria and Farzad Fallah, ‘The Right to International Solidarity and Humanitarian Assistance in the Era of Covid-19 Pandemic’ (2020) 11(2) Journal of International Humanitarian Legal Studies 193–203
Abstract: From an international law point of view, the covid-19 pandemic could be described as a ‘disaster’ which has led to various calls especially from the UN system for harmonized international cooperation and global solidarity. This article focuses on the meaning of ‘solidarity’ in the context of international human rights, and elaborates on the implications of solidarity on the international law of humanitarian assistance in the current situation of the coronavirus outbreak.

d’Aspremont, Jean, ‘International Law as a Crisis Discourse: The Peril of Wordlessness’ in Makane Mbengue and Jean d’Aspremont (eds), Crisis Narratives in International Law (Brill, 2021)
Abstract: International law lives off crises, lives its crises, and lives in crisis. International law is a discourse for crisis, about crisis, and in crisis. In short, international law is a crisis discourse. In that sense, engaging with international law from the vantage point of crisis hardly adds anything, let alone proves novel. International lawyers are the masters of a discourse that is all about containing, making, and surviving crises in an interventionist, and managerial spirit. Against this backdrop, the very extensive literature that burgeoned following the outbreak of the COVID-19 pandemic is nothing but business as usual for a crisis discourse like international law. And yet, as this paper tries to demonstrate, should international law let the looming climate catastrophe – as well as the calamitous consequences of the measures necessary to avert it entail – be absorbed in its crisis narratives and in what is called here its ‘normally abnormal normality’, international law would be condemned to wordlessness.

Barnes, Ashleigh and Emilie McDonnell, ‘An Overview of Emerging International Human Rights Law Guidance: Promoting Human Rights Compatibility of Government COVID-19 Responses’ (University of Oxford, Faculty of Law, Bonavero Institute of Human Rights, Bonavero Report No 5/2020, 17 August 2020) 20
Abstract: Extract from Introduction: There are now a number of international and regional human rights, rule of law and democracy organisations that have developed general guidance on how Covid-19 measures should be evaluated for their compliance with international human rights law. This report aims to collate and briefly summarise the emerging content of such guidance. Due to the proliferation of such guidance, this report is limited to the most significant pieces. It is organised thematically by reference to the following trends: accountability, emergencies and derogations, rights limitations (including privacy), socio-economic rights, discrimination, vulnerable persons, and enforcement powers and practice. This report thus provides a thematic overview of international human rights law guidance to legislatures, executives, courts and civil society in responding to the Covid-19 pandemic.

Bartolini, Giulio, ‘The Failure of “Core Capacities” Under the Who International Health Regulations’ (2021) 70(1) International & Comparative Law Quarterly 233–250
Abstract: Analyses related to the Covid-19 pandemic have mainly addressed measures adopted in response to this event without paying attention to provisions included in the 2005 International Health Regulations which require States to develop predefined core capacities to prevent, control and provide a public health response to the international spread of disease. The legal architecture related to these obligations has, however, various shortcomings and States have largely failed to implement the required measures. Only recently has some practice been developed by the WHO to address these deficiencies, and further action is still required to finally implement this (neglected) cornerstone of the global health system.

Becker, Michael A, ‘Do We Need an International Commission of Inquiry for COVID-19?’ [2020] European Journal of International Law (forthcoming)
Abstract: This paper considers whether the COVID-19 pandemic requires the establishment of an international commission of inquiry. It considers the reasons to pursue inquiry rather than litigation and what an inquiry’s mandate might contain, including how much the inquiry should focus on international law or state responsibility. It then considers who could create such a body, what its composition might look like, different working methods, and how to maximise co-operation. Overall, a forward-looking inquiry aimed at improving global preparedness may be more prudent and realistic than a mechanism focused on legal wrongdoing.

Benvenisti, Eyal, ‘The WHO—Destined to Fail?: Political Cooperation and the COVID-19 Pandemic’ (2020) 114(4) American Journal of International Law 588–597 (unpublished version of paper available on SSRN)
Abstract: In this Essay, I argue that the World Health Organization (WHO) has not been equipped with the necessary authority to adequately fulfill its mission. The WHO was built on the mistaken assumption that attaining adequate global health is a matter of high-level coordination. However, the challenge of global health governance is, crucially, also one of complex political cooperation. I distinguish between different types of cooperation problems faced by the WHO and explain why achieving global health calls for intrusive powers by a governing authority—powers that the WHO does not enjoy.

Bergkamp, Lucas, ‘State Liability for Failure to Control the COVID-19 Epidemic: International and Dutch Law’ (2020) 11(2) European Journal of Risk Regulation Special Issue -‘Taming COVID-19 by Regulation’ 343-349
Abstract: The COVID-19 epidemic has caused governments in Europe to impose a variety of measures to fight the spread of the disease. Some governments have adopted relatively relaxed measures or adopted strict measures late, while some have been more proactive and implemented restrictions early on. This article discusses the potential liability of governments in relation to negligence and omissions with respect to COVID-19 measures. The focus is on China and The Netherlands. State liability can arise if governments have been negligent in addressing the threat of the COVID-19 epidemic, specifically where they have created risks due to not implementing restrictions or not doing so in a timely manner, or otherwise have failed to protect public health and human lives. These issues are analysed with reference to international law and the laws of The Netherlands, which has a well-developed – albeit idiosyncratic – system of state liability. Of course, it is also possible that governments are liable for damages caused by measures to fight COVID-19. For example, regulations requiring the closure of cafes and restaurants will cause economic harm to the operators thereof. This kind of potential liability is not discussed in this article. It should be noted, however, that governments are likely to offer compensation for the damages caused by these measures.

Bernadini, Diago, ‘The Need for a New Governance in Health: The Role of the World Heath Organization’ in Gian Luca Gardini (ed), The World Before and After COVID-19: Intellectual Reflections on Politics, Diplomacy and International Relations (European Institute of International Relations, 2020) 48–51

von Bogdandy, Armin and Pedro Villarreal, ‘Critical Features of International Authority in Pandemic Response: The WHO in the COVID-19 Crisis, Human Rights and the Changing World Order’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–18, 2020)
Abstract: During the COVID-19 pandemic, unprecedented national authority seems the motto of the day, and international authority largely irrelevant. By contrast, the article will show that international authority does play a core role in the global response, and that some governments, by failing to see this, may even be facilitating shifts in the multilateral world order. To this end, the article will first present some essentials to grasp the WHO’s authority, an embattled instance of global governance. It then analyzes three key contributions to the current pandemic response with the respective controversies: Its detailed regulatory framework, its framing of the 2020 health crisis, including its much criticized postponement for a week, and its recommendations on what to do concretely, in particular not to restrict travel which is accused of hindering national governments. The article then moves to two broader questions.The first is how the WHO’s positioning in the clash between more democratic and more authoritarian forces, as it emerges in its recommendations on how to square human rights with quarantines. The second issue relates to its positioning in the current competition between China and the West, in particular the US.

von Bogdandy, Armin and Pedro Villarreal, ‘International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–07, 26 March 2020)
Abstract: The coronavirus (SARS-CoV-2) pandemic is currently raging throughout the world. The ensuing crisis has acquired a multidimensional nature, affecting all levels of society. Measures adopted by domestic authorities have included a broad spectrum of restrictions: from general alerts to mandatory quarantines and isolations of individuals, to blanket travel bans and cordoning-off of cities and, in some cases, countries. Many governments have declared states of emergency, thereby assuming exceptional powers. This dire crisis leads to our core questions: What are the relevant obligations, powers and procedures under public international law? Have they been complied with? What role, if any, has international law, via its institutions, played so far? The World Health Organization, a specialized agency of the United Nations, is the international institution with a core mandate in issues of global health. Moreover, the International Health Regulations (IHR) is the main legally binding instrument laying down rules for the cross-border spread of disease. Against this backdrop, in order to address the core questions, this paper provides an overview of the IHR in light of current issues and disputes. The paper then evaluates those issues and disputes under other regimes of international law, such as human rights, trade law, peace and security law, and the law of development finance. Lastly, the paper offers conclusions by way of answers to the research questions.

von Bogdandy, Armin and Pedro Villarreal, ‘The Role of International Law in Vaccinating Against COVID-19: Appraising the COVAX Initiative’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–46, November 2020)
Abstract: Soon there will be vaccines against COVID-19, but they will initially be scarce. Vaccine nationalism, resultantly, looms large. However, for considerations of effectiveness, solidarity as well as of international law, national governments should also cater for the health of other countries’ populations. This article presents the main legal instruments of vaccine nationalism as well as the COVAX Initiative as an instrument for a fairer global distribution. An analysis of the international right to health shows the normative corridor in which COVAX is situated and the promise it holds for some degree of sustainable solidarity.

Brandao, Claudio and Renato Feitosa, ‘Prison by Human Rights’ Lens and Covid19 Pandemic: The Brazilian Crisis’ (2020) 2(2) Humanities and Rights Global Network Journal 147–163
Abstract: From the eighteenth century, prison was raised as the main response of Criminal law. This happened for a political reason, namely the creation of State. In this context, incorporations that the ideologies and characteristics of later centuries brought to prison entail an aporia. To face this crisis, Human rights has produced criteria that should guide the actions of States. The COVID19 pandemic caused urgency of segment of these criteria and the Brazilian case is brought up as an example of failures of most UN member states.

Broberg, Morten, ‘A Critical Appraisal of the World Health Organization’s International Health Regulations (2005) in Times of Pandemic: It Is Time for Revision’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 202-209
Abstract: The UN World Health Organisation (WHO) is the most important international actor when it comes to coordination in the fight against contagious diseases. This article presents the International Health Regulations (2005) which constitute the WHO’s legal basis for coordinating the work to counter epidemics, it identifies serious weaknesses in the International Health Regulations (2005), and it points to solutions for remedying these weaknesses. The article argues that the COVID-19 pandemic provides a warning bell that is too loud to be ignored, and that this warning bell reminds us that it is high time to prepare ourselves against those transmittable diseases that will hit us in the future. In this respect we must ensure that the WHO is much better equipped to lead this fight than what is the case today.

Bueno De Mesquita, Judith, ‘COVID-19: An Inconvenient Truth? Re-Evaluating Progress and Confronting Challenges for the Right to Health’ in Carla Ferstman and Andrew Fagan (eds), _Covid-19, Law and Human Rights : Essex Dialogues_ (School of Law and Human Rights Centre, University of Essex, 2020) 85–92

Bueno de Mesquita, Judith, Anuj Kapilashrami and Benjamin Mason Meier, ‘Strengthening Human Rights in Global Health Law: Lessons from the COVID-19 Response’ (2021) 49(2) Journal of Law, Medicine & Ethics 328–331

Abstract: While human rights law has evolved to provide guidance to governments in realizing human rights in public health emergencies, the COVID-19 pandemic has challenged the foundations of human rights in global health governance. Public health responses to the pandemic have undermined international human rights obligations to realize (1) the rights to health and life, (2) human rights that underlie public health, and (3) international assistance and cooperation. As governments prepare for revisions of global health law, new opportunities are presented to harmonize global health law and human rights law, strengthening rights-based governance to respond to future threats.

Bueno De Mesquita, Judith and Benjamin Mason Meier, ‘Moving Towards Global Solidarity for Global Health through Multilateral Governance in the COVID-19 Response’ in Carla Ferstman and Andrew Fagan (eds), COVID-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 31–39
Introduction: The rapid spread of, and devastation caused by, Covid-19 worldwide reflects not only its viral properties, but the dichotomy between a globalised world profoundly connected by trade and travel and the absence of global solidarity and coordination in the response to the pandemic. Challenging a rising disengagement from multilateral governance, the UN Secretary General, the World Health Organisation (WHO), and the UN Committee on Economic, Social and Cultural Rights (CESCR) have all called for global solidarity and international assistance and cooperation to be at the heart of the Covid-19 response. In this paper, we explore what this means for global health, giving particular attention to two core components of global health law that provide legally binding obligations regarding Covid-19: the commitments to global governance under the International Health Regulations (IHR) and obligations of international assistance and cooperation towards the realisation of economic, social and cultural rights, including the right to health, under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Situating the global pandemic response in the context of the contemporaneous decline of multilateralism, our article takes a critical look at the international institutions and frameworks and their role during pandemic responses, and the imperative of a more cosmopolitan approach to global governance, embracing solidarity and international cooperation in a way that serves low-income countries and rights holders everywhere.

Burci, Gian Luca, ‘The Legal Response to Pandemics: The Strengths and Weaknesses of the International Health Regulations’ (2020) 11(2) Journal of International Humanitarian Legal Studies 204–217
Abstract: The pandemic of ‘severe acute respiratory syndrome coronavirus 2’ (sars-CoV-2) has raised unprecedented challenges for most international legal and policy regimes and we cannot yet foresee its long-term consequences. The legal and institutional regime to prevent and control the international spread of disease, based on the World Health Organization and the International Health Regulations (IHR 2005) has also been severely tested. Critics have challenged who’s apparent politicization and the ineffectiveness of the IHR 2005 as a tool to coordinate the international response to covid-19. The IHR 2005 have codified the operational model of the who Secretariat at the time of their revision, but the assumptions about who’s epistemic authority and the willingness of states parties to conform to who’s lead have proven overoptimistic. Still, addressing some of the major weaknesses of the IHR 2005 could give them renewed momentum and nudge states towards a more coordinated and effective response to epidemics.

Busby, Joshua W, ‘Understanding the Anemic Global Response to COVID-19’ (2020) 45(6) Journal of Health Politics, Policy and Law 1013–1021
Abstract: The COVID-19 outbreak is the most serious test of the international system since the 2008 global financial crisis. Rather than cooperate to contain and respond to a common threat, the world’s leading powers, the United States and China, increasingly blamed each other through wildly speculative theories about the origins of the virus. The World Health Organization (WHO) sought to coordinate a global response but it has been hamstrung and come under attack. Given past cooperation between major powers to mobilize and eradicate smallpox and previous U.S. leadership to fight HIV/AIDS and the 2014 West African Ebola crisis, the limited cooperation and lack of leadership are puzzling. What explains the anemic global response to date? This paper draws from structural international relations theory to suggest a partial but somewhat dissatisfying answer. International organizations are inherently weak faced with opposition by major powers. The international system simultaneously incentivizes states to cooperate and address common threats but at the same time encourages countries to take care of themselves, potentially at the expense of others. Which of these motives dominates cannot be explained by structural theory, requiring us to look to other factors such as the attributes of states or of leaders themselves.

Chaisse, Julien and Nilanjan Banik, ‘Global Health Law & Governance Amidst the Pandemic’ (2021) 30 Annals of Health Law 207

Chaturvedi, Ipshita, ‘China’s State Responsibility for the Global Spread of COVID19: An International Law Perspective’ (Observer Research Foundation, ORF Issue Brief No 373, 2020)
Abstract: Three months since the World Health Organization (WHO) declared the outbreak of COVID-19 as a pandemic, the health crisis has wreaked havoc on people’s lives and livelihoods across the globe. Can state responsibility be apportioned for the pandemic, under the current international legal system? What would the elements of such responsibility be? This brief explores the concept of ‘state responsibility’ under public international law and examines whether China—ground-zero of the pandemic—can be made legally responsible. The brief studies practical cases to assess how principles of international law have previously been applied with respect to state responsibility.

Chetail, Vincent, ‘Crisis Without Borders: What Does International Law Say About Border Closure in the Context of Covid-19?’ (2020) 2 Frontiers in Political Science Article 606307
Abstract: This paper is assessing the legality of border closures decided by a vast number of countries with the view of limiting the spread of Covid-19. Although this issue has raised diverging interpretations in relation to International Health Regulations and regional free movement agreements, international human rights law provides a clear-cut answer: the rule of law stops neither at the border nor in times of emergency. Against this normative framework, border control can and must be carried out with the twofold purpose of protecting public health and individual rights, whereas border closure is unable to do so because it is by essence a collective and automatic denial of admission without any other form of process. This paper argues that blanket entry bans on the ground of public health are illegal under international human rights law. They cannot be reconciled with the most basic rights of migrants and refugees, including the principle of non-refoulement and access to asylum procedures, the prohibition of collective expulsion, the best interests of the child and the principle of nondiscrimination. The paper concludes on the ways to better integrate at the borders public health and human rights imperatives in due respect with the rule of law. In both law and practice, public health and migrant’s rights are not mutually exclusive. They can reinforce each other within a comprehensive human rights based approach to health and migration policies.

Chiangi, Michael Aondona, Igwela P Franca and Peres Agari, ‘State Responsibility in the Wake of COVID-19 Pandemic: International Health Law and Human Rights Obligations of China’ (2020) 9(2) Port Harcourt Law Journal 162
Abstract: This article examines the law of state responsibility and its application to the events that have transpired in the wake of COVID-19. China’s delay in reporting the outbreak to the WHO and the discriminatory safety measures employed against blacks in China has raised legal questions affecting state responsibility. Some Scholars have advocated that China should be sued at the International Court of Justice for breaching her obligation under the International Health Regulations 2005 (IHR). This paper argues that this would be futile because there is no causal nexus between the alleged breach of China’s obligation and the spread of COVID-19. Also, China has not expressed consent to the jurisdiction of the ICJ which is required in contentious cases. Again, this paper argues, that the allegations of racial discrimination against China would also be difficult to redress. First, these allegations implicate both Chinese citizens and government officials. Secondly, redress would be before judicial/administrative forums in China, and the independence of such arrangements is questionable. The paper further argues that unlike in Africa, Europe and America, if an applicant is dissatisfied with the domestic remedy, there is no corresponding regional human right arrangement in Asia to which he may resort.

Cinà, Margherita et al, ‘The Stellenbosch Consensus on the International Legal Obligation to Collaborate and Assist in Addressing Pandemics: Clarifying Article 44 of the International Health Regulations’ (SSRN Scholarly Paper No ID 3750193, 2 December 2020)
Abstract: The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing covid-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the IHR is a necessary step in ensuring these obligations can be acted upon and fully realized, and in fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 44 using the interpretive framework of the Vienna Convention on the Law of Treaties.

Clark, Janine Natalya, ‘The COVID-19 Pandemic and Ecological Connectivity: Implications for International Criminal Law and Transitional Justice’ (2020) Journal of International Criminal Justice Article mqaa057 (advance article, published 21 December 2020)
Abstract: The ongoing COVID-19 pandemic has affected multiple aspects of our lives. This interdisciplinary article reflects on the significance of the pandemic from a largely unexplored angle, through a focus on the key concept of ecological connectivity, which broadly refers to the inter-connections between different elements of an ecosystem. Examining the pandemic through the lens of ecological connectivity, the article also theorizes it (and zoonotic diseases more generally) as a violation of this connectivity. It uses this idea as a core thread for linking COVID-19, international criminal law and transitional justice. Its key argument in this regard is that war crimes and human rights violations can themselves be viewed, in part, as violations of ecological connectivity. This theorization, in turn, provides a novel basis for thinking about the wider ecological dimensions and legacies of war crimes and gross violations of human rights, and, by extension, the potential role of international criminal law and transitional justice in helping to restore damaged connectivities through a relational approach to justice.

Coco, Antonio and Talita de Souza Dias, ‘Prevent, Respond, Cooperate: States’ Due Diligence Duties Vis-à-Vis the Covid-19 Pandemic’ (2020) 11(2) Journal of International Humanitarian Legal Studies 218–236
Abstract: While disease outbreaks remain to a certain extent unforeseeable, international law provides a comprehensive legal framework requiring States to prevent their harmful consequences, effectively respond to ensuing health emergencies, and cooperate in achieving those aims. This contribution shows that, within this framework, many rules take the form of ‘due diligence’ obligations. Obligations of due diligence, albeit inherently flexible to accommodate different capabilities and circumstances, are binding on States. They impose a duty to act according to a standard of ‘good governance’: a State must employ its best efforts to realise certain common goals. At least five key sets of rules establishing due diligence duties are relevant to the Covid-19 outbreak: a) the ‘no-harm’ principle; b) international disaster law; c) the International Health Regulations; d) international human rights law; and e) international humanitarian law. We preliminarily identify some of the actions required from States to prevent new outbreaks and respond to the pandemic, whilst assessing compliance with applicable rules. We conclude that hard lessons learned during the current crisis should spur more decisive action to prevent and address future public health emergencies.

Coco, Antonio and Talita de Souza Dias, ‘Cyber Due Diligence in Public Health Crises’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (A Project of the School of Law and Human Rights Centre, University of Essex, 2020) 297–307
Extract from Introduction: The international community already benefits from a suitable - if patchy - international legal and policy framework laying down States’ duties to act diligently in preventing, halting and remedying harmful cyber operations against systems and infrastructures which are essential during health crises. States must implement those obligations, inter alia, by adopting measures aiming at: establishing an adequate national legal framework; monitoring cyber threats; enhancing the security and resilience of relevant systems and infrastructure; engaging in constructive international cooperation and dialogue. By behaving diligently in cyberspace, States will more likely be able to contain the spread of Covid-19, prevent further harm and pursue an effective recovery from the outbreak.

Cuevas-Parra, Patricio, ‘Thirty Years after the UNCRC: Children and Young People’s Participation Continues to Struggle in a COVID-19 World’ (2021) 43(1) Journal of Social Welfare and Family Law 81–98
Abstract: The COVID-19 pandemic has spread to more than 200 countries and territories, despite governments’ efforts to ‘flatten the curve’. The measures to respond to the COVID-19 outbreak have been perceived as retrogressive for children and young people’s rights to participation. A common denominator across countries and regions is the reduced spaces for children and young people to influence decision-making processes and policy responses associated with COVID-19. This article critically examines the meanings and implications of children and young people’s participation rights in the time of COVID-19. In particular, it explores how lockdowns and other physical distancing measures have a negative impact on social interactions, leaving behind hard-to-reach children and young people and undermining some children and young people’s rights to participate on the premise that their protection is more relevant in crisis situations. This article discusses children and young people’s perspectives on how their opportunities to be listened to during the pandemic have been restricted. The article considers children and young people’s ability to communicate online, considering how those without access to the Internet – practically half the world – are left out, and, in the end, demonstrating that this pandemic is producing and exacerbating existing inequalities

Danchin, Peter G et al, ‘The Pandemic Paradox in International Law’ (2020) 114(4) American Journal of International Law 598–607 (pre-pubished version of article published as ANU College of Law, Legal Studies Research Paper No 20.18, 2020)
Abstract: This Essay examines a series of paradoxes that have rendered the international legal order’s mechanisms for collective action powerless precisely when they are needed most to fight COVID-19. The ‘patriotism paradox’ is that disengagement from the international legal order weakens rather than strengthens state sovereignty. The ‘border paradox’ is that securing domestic populations by excluding noncitizens, in the absence of accompanying regulatory mechanisms to secure adherence to internal health measures, accelerates viral spread among citizens. The ‘equality paradox’ is that while pandemics pose an equal threat to all people, their impacts compound existing inequalities.

De Vido, Sara, ‘A Quest for an Eco-Centric Approach to International Law: The COVID-19 Pandemic as Game Changer’ (2021) 3(2) Jus Cogens 105–117
Abstract: This Reflection starts from the ongoing COVID-19 pandemic as unprecedented occasio to reflect on the approach to international law, which—it is contended—is anthropocentric, and its inadequacy to respond to current challenges. In the first part, the Reflection argues that there is, more than ever, an undeferrable need for a change of approach to international law toward ecocentrism, which puts the environment at the center and conceives the environment as us, including humans, non-human beings, and natural objects. To encourage the incorporation of ecocentrism in the entire discipline, the Reflection will rely on some insight of ecofeminism, whose potential has not been fully investigated in international legal scholarship. In the second part, the Reflection illustrates what an eco-centric international law would mean, imagining three possible applications: first, what the author has called environmental global health, which is connected to the current pandemic and puts into question the proposals dealing with global health that completely miss the theorization of the environment as a whole; second, how actors of international law would change according to an eco-centric perspective; and, third, how the rules prohibiting the use of force might be reconceptualized. The analysis contained in these pages cannot itself exhaust all the possible nuances of the legal reasoning, but it is aimed at being a provocative starting point for a change in the mindset and approach of international legal scholarship.

Delerue, François, ‘Covid-19 and the Cyber Pandemic: A Plea for International Law and the Rule of Sovereignty in Cyberspace’ (13th International Conference on Cyber Conflict (CyCon), 2021) 9–24
Abstract: There has been an important increase in threats and attacks in cyberspace during the Covid-19 crisis. Incidentally, States and other actors have condemned this cyber pandemic and highlighted the incompatibility of these behaviours with international law and the framework of responsible State behaviour. From the perspective of international law, the rule of sovereignty appears to have a central role to play in addressing the malicious cyber activities that have taken advantage of the coronavirus pandemic. Indeed, most of these malicious cyber activities may only constitute breaches of sovereignty. Sovereignty is, however, among the most unsettled and contentious parts of international law, even among the so-called ‘like-minded’ States, which have expressed very different interpretations. Building on these observations, the present article investigates the different types of cyber operations that unfolded during the Covid-19 pandemic and questions their characterization in relation to the rules and principles of international law. It assesses the theoretical role of the rule of sovereignty in crisis management during a cyber pandemic as well as its actual use in State practice. Ultimately, it demonstrates the centrality of this rule of international law and how the current sanitary crisis may constitute a plea for its application - or perhaps its rejuvenation - and for its further development in State practice.

Desmonda, Angela Jessica, ‘Port Denials and Restrictions Policies during Covid-19 Pandemic Based on International Law’ (2020) 7(3) Padjadjaran Journal of Law 380–399
Abstract: As a public facility, port has a significant potential to be cluster of the Covid-19 spread. Many states have implemented policies of denials and restriction of port access to protect people’s health. This study aims to analyze port denials and restrictions policies settings based on international law. In addition, this study is to analyze whether the status of state of emergency will affect state’s obligations based on international law. This study was conducted by analyzing associated international treaty law and customary law. The study concludes that no international treaty law and customary law prohibit port denials and restrictions because port is under the sovereignty of respected coastal state. The state is free to implement any policies. Without any permit, foreign ships are not allowed to enter and dock at the port of the coastal state. However, in a situation of danger or distress, foreign ships have the right to enter port. The IHR 2005, as a special instrument dealing with public health, also provides an opportunity for coastal state to prevent ship embarking and disembarking passengers if the ship is exposed to a pandemic disease, such as Covid-19. In such case, foreign ship may be prohibited from entering and docking at port of coastal state. On the other hand, in a situation of danger or distress, foreign ship has the right to enter port. In contrast, the 1923 Port Convention gave permission to state to close ports in urgent situation that endangered national security.

Dhai, Ames, ‘Access to COVID-19 Vaccines as a Global Public Good: A Co-Ordinated Global Response Based on Equality, Justice and Solidarity is Key’ (2021) 14(1) South African Journal of Bioethics and Law 2–3
Abstract: The COVID-19 pandemic has exposed the extreme selfishness of many of the globe’s rich countries who, in this unprecedented crisis, have entirely disregarded the global nature of the problem - a problem that calls for a co-ordinated global response founded on unity and solidarity. As of 31 March 2021, South Africa (SA) had recorded 1 548 487 positive cases, 52 846 deaths and 263 878 vaccines administered to healthcare workers through the Sisonke Phase 3B trial.[1] Globally, 559 million doses have been administered, with 10% of the world’s economies accounting for 77% of the total number vaccinated thus far (personal communication (bulk email), Dr Tedros Adhanom Ghebreyesus, 1 April 2021). This is clear evidence that we are steeped in unfairness globally, and that the right to health for all is once again being denied. As with other crises, we witness exacerbations of pre-existing inequalities across the world, with the most vulnerable being affected the most. The United Nations (UN) asserts that vaccine equity affirms human rights, and that vaccine nationalism denies them. It goes on further to state that vaccines must be a global public good, accessible and affordable to all.

Disu, Damilare O, ‘An Evaluation of the Efficacy of International Law in Holding China Culpable for the Coronavirus Pandemic’ (2020) 1(1) Journal of Advanced Public International Law Special (Covid 19) Edition)
Abstract: The huge loss of lives and economic tragedy triggered by the global spread of the Covid-19 pandemic has led many to finger China’s initial response as being responsible for the global disaster occasioned by the virus. Consequently, several countries have called for an independent investigation of China’s management of the crisis. As a result, actions have been filed across the world with the object of holding China liable for the crisis. The efficacy of these actions and the possibility of holding China culpable have thus engaged the minds of international law enthusiasts. Stemming from the above, this paper assesses China’s culpability by the principle of state responsibility under international law. The paper concludes that although grounds exist for China’s culpability, the frailty of international law has made this difficult, if not impossible.

Du, Li, Vera Lúcia Raposo and Meng Wang, ‘COVID-19 Contact Tracing Apps: A Technologic Tower of Babel and the Gap for International Pandemic Control’ (2020) 8(11) JMIR mHealth and uHealth e23194
Abstract: As the world struggles with the new COVID-19 pandemic, contact tracing apps of various types have been adopted in many jurisdictions for combating the spread of the SARS-CoV-2 virus. However, even if they are successful in containing the virus within national borders, these apps are becoming ineffective as international travel is gradually resumed. The problem rests in the plurality of apps and their inability to operate in a synchronized manner, as well as the absence of an international entity with the power to coordinate and analyze the information collected by the disparate apps. The risk of creating a useless Tower of Babel of COVID-19 contact tracing apps is very real, endangering global health. This paper analyzes legal barriers for realizing the interoperability of contact tracing apps and emphasizes the need for developing coordinated solutions to promote safe international travel and global pandemic control.

Durrheim, David N, Laurence O Gostin and Keymanthri Moodley, ‘When Does a Major Outbreak Become a Public Health Emergency of International Concern?’ (2020) 20(8) The Lancet Infectious Diseases 887–889
Abstract: Could the pandemic of the century have been averted? The process by which WHO decides whether to declare a Public Health Emergency of International Concern (PHEIC) under the International Health Regulations has drawn criticism. Reports have condemned the 4-month delay by WHO after the international spread of Ebola in west Africa before declaring a PHEIC. The Democratic Republic of the Congo, now experiencing the second largest Ebola outbreak in recorded history, notified WHO of the outbreak on Aug 1, 2018, but WHO required four Emergency Committee meetings, including on Oct 17, 2018 (216 confirmed cases, 139 deaths, and 64% case fatality ratio), and April 12 and June 14, 2019 (four confirmed cases in Uganda).

Duvic-Paoli, Leslie-Anne, ‘The COVID-19 Pandemic and the Limits of International Environmental Law’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020)
Abstract: What can a global health crisis tell us about international environmental law? To answer this question, this short piece maps the interconnections between the COVID-19 pandemic and international environmental law at three stages of the crisis: its origins, policy responses, and consequences. It argues that the pandemic sheds light on the weaknesses of international environmental law.

Dwi Sherlin, Delvina and Zalfa Zahirah, ‘Online Gender Based Violence Against Women During Pandemic From The Perspective Of International Law’ (2021) [no publication information provided]
Abstract: Violence against women and girls is very high in the present world. Any kind of violence is a violation of their human rights which often causes due to their lack of protest and easy submission in and out of the house. Many researchers have found that, in Indian culture, since the very early periods, women as a group have been dominated by men. Their status in the family and society has been low. Gender-based violence has become a hot topic lately, as the case has increased to many times over, due to the large number of social media users who are not careful and negligent in learning and understanding what positive things should be, as well as negative things that need to be avoided. Therefore, the need for education and good understanding in using social media. And fortunately, there are still many Institutions that are ready to handle such cases, such as KOMNAS HAM, CEDAW and United Nation Women.

Eguaoje, Joy B, ‘COVID-19: Responsibilities and Reparations under International Law’ (2020) 1(1) Journal of Advanced Public International Law Special (Covid 19) Edition)
Abstract: The advent of the year 2020 marked the confirmation of a novel respiratory virus identified as the Coronavirus. The Coronavirus is believed to have originated from Wuhan, China. It has resulted in over 600 thousand deaths and has placed the world economy in shambles. It is argued that the failure of China to effectively handle the virus in its early stage resulted in the eruption that the world currently suffers. This paper seeks to critically analyse the culpability of China for the spread of Covid-19 by applying the provisions of related international instruments and making recommendations for the reparations that are necessary on the part of China - if it is indeed culpable.

Eissa, Heidi, ‘The Role of International Health Regulations in Combating COVID-19’ (SSRN Scholarly Paper ID 3616686, 2 June 2020)
Abstract: On March 11, 2020, the World Health Organization (WHO) declared coronavirus (COVID-19) ‘a global pandemic’. It infected nearly 5,568,271 people all over the world and killed more than 350,754 persons from 187 countries to date. The numbers are increasing, and the situation is becoming extremely dangerous.Accordingly, it is only logical to consider the International Health Rules (IHR) to which the largest number of States are subject. These rules should guarantee ways to protect peoples from this pandemic, considering its tremendous spread across borders. Thus, this paper will tackle the enforcement of the IHR and its present and future role in this regard.

Emeziem, Cosmas, ‘COVID-19 Pandemic, The World Health Organization, and Global Health Policy’ (2021) 33(2) Pace International Law Review 189
Abstract: The emergence and quick spread of the COVID-19 pandemic has shifted the focus and dynamics of the debates about global health, international law, and policy. This shift has overshadowed many of the other controversies in the international sphere. It has also highlighted the tensions that often exist in international affairs—especially in understanding the place and purpose of international institutions, vis-à-vis states, in the general schema of public international law. Central to the international response to the current pandemic is the World Health Organization (WHO)—a treaty-based organization charged with the overarching mandate of ensuring ‘the highest possible level of health’ for all peoples. Interestingly, the WHO has also become entangled in a foreign policy spat between China and the United States of America. This work explores the public international law aspects of the WHO and why we should focus on its primary policy mandate and avoid unduly heaving the institution into perennial strategic policy games of states. It argues against turning such an illustrious institution, charged with a peculiar mandate, into an arena of zero-sum competitions amongst states. The hope is that this paper will provide crucial insights and assist legal and policy experts in understanding the organization, insulating it from unnecessary strategic games of powerful states, and ensuring the continued and effective delivery of global health policy through the WHO.

Estrañero, Jumel and Maria Kristina Siuagan, ‘Fulcrum of International Negotiation: Strategic Stakes and Consequence of China, SARS-CoV-2, and South China Sea Dispute in Global Security Order’ (SSRN Scholarly Paper ID 3590094, 1 May 2020)
Abstract: The current Sars-CoV-2 (COVID-19) has been challenging the global security order in unintended negotiation whether to maintain or revamp the status quo of global security order. From the onset on COVID-19 since the last quarter of 2019, it has already presented negotiators with new rules and new players even from the unexpected actors. The pandemic has not only wrecking havoc the economic tendencies of each state but it has definitely showing many parameters of negotiation which have remained fairly constant through the transition (crisis, collation building, mediation, issue linkages, and related factors and indicators). The determination of national interest has been greatly complicated for governments, democratic and non-democratic alike. For the democracies of the world, diplomatic agenda setting is highly subject to strong domestic pulls; for the non-democracies, deliberations are clearly influenced by international and public opinion. In the contemporary process, it is also clear that culture and identity play greater roles in shaping negotiation positions and moves, as manifested in the application of new techniques such as culture-based mediation and track-two facilitation.

Evans-Ibe, Savictor S, ‘Covid-19 and International Law: A Critical Assessment of China’s Culpability’ 1(1 - Special (Covid 19) Edition) Journal of Advanced Public International Law 8
Abstract: The damages caused by Covid-19 have led to calls for China to compensate other states of the world, premised on the notion that China failed its obligations in the way it handled the outbreak. This paper, therefore, sets out to evaluate China’s culpability through the lens of existing international laws. The paper reached its conclusions through critical evaluation of the provisions of the World Health Organization’s constitution, the International Health Regulations, and the Draft Articles on State Responsibility for Wrongful Acts. Several books, articles, and authoritative publications were consulted, while qualitative analysis was adopted for the research. An assessment of these laws proves China’s culpability concerning the manner it handled the outbreak at the onset. However, the paper concludes that it would be difficult to enforce any legal decision(s) against China; and recommends a shift of focus to measures that would increase cooperation among sovereign states in international relations.

Fidler, David P, ‘The Covid-19 Pandemic, Geopolitics, and International Law’ (2020) 11(2) Journal of International Humanitarian Legal Studies 237–248
Abstract: Balance-of-power politics have shaped how countries, especially the United States and China, have responded to the covid-19 pandemic. The manner in which geopolitics have influenced responses to this outbreak is unprecedented, and the impact has also been felt in the field of international law. This article surveys how geopolitical calculations appeared in global health from the mid-nineteenth century through the end of the Cold War and why such calculations did not, during this period, fundamentally change international health cooperation or the international law used to address health issues. The astonishing changes in global health and international law on health that unfolded during the post-Cold War era happened in a context not characterized by geopolitical machinations. However, the covid-19 pandemic emerged after the balance of power had returned to international relations, and rival great powers have turned this pandemic into a battleground in their competition for power and influence.

Foster, Caroline E, ‘Sovereignty, Trade in Goods and Protecting Human Health through Pandemic Prevention’ (SSRN Scholarly Paper ID 3873042, 27 May 2021)
Abstract: How can the world do better at responding to potential pandemics at an early stage? Intense consideration is being given to this question as part of formal reviews on the global response to the COVID-19 pandemic, and the functioning of the World Health Organization’s International Health Regulations. While some have advocated enlarging the powers of the World Health Organization (WHO) to the point where States share their sovereignty with the organisation, this article argues that sovereignty and the structure of international law are already changing in ways that will assist. The sharing of sovereignty may not be necessary at a time when ‘global regulatory standards’ are emerging that help tame sovereignty in an interdependent world. This development casts a new light on global health governance, prompting new thinking and new ideas. For instance, a significant aspect of pandemic prevention raised in scholarship on shared sovereignty relates to concerns about excessive import restrictions on products from States that reveal they have a contagious disease outbreak. These concerns disincentivize early information sharing about emerging diseases. However, if we approach the problem with reference to emerging global regulatory standards, this may help us identify a range of options to increase accountability for import restrictions and promote disease notification. These options may include a specific instances joint WHO-WTO inquiry mechanism to cast greater light on import restrictions.

Galani, Sofia, ‘Port Closures and Persons at Sea in International Law’ (2021) 70(3) International & Comparative Law Quarterly 605-633
Abstract: The systematic protection of persons at sea remains flawed. This problem has become even more acute during the Covid-19 pandemic when port closures have caused an unprecedented humanitarian crisis at sea. This article looks at the impact of port closures on the rights of persons at sea and considers how international law can protect those rights. While persons at sea are afforded significant rights protections in international law, the rights and duties of States often clash, with the result that persons at sea can find themselves in something of a legal vacuum. In order to address this problem, this article argues that the various rights and duties of States must be interpreted and applied in a way that fully recognises the rights of persons at sea.

Gangadarsana, PG, ‘Right to Health: It’s [sic] Implications in India During the Covid Era’ (2021) 24 Supremo Amicus Journal (unpaginated)
Abstract: ‘Right to Health’ is a fundamental human right that is imperative of all other rights. The human right to health is guaranteed internationally and nationally in various International Instruments and National legislations respectively. Ever since the outbreak of novel Corona virus, there prevails an incessant debate of defending the basic right of health to every human-being by various organizations and communities across the globe. The World Health Organization, being the upholder of health right stays as a silent spectator when it comes to balancing the right of health and controlling the spread of Covid, ever since it declared the spread of virus as a ‘Global Pandemic’. In India, COVID-19 is contemplated an eye-opener in the arena of ‘Public health care system’ and ‘Protection of right to health’. This article brings to light, the implications revolving around ‘Human right to Health’ – the framework of laws and the infrastructure of public health system in the post-Covid era in India.

Ganty, Sarah, ‘Socioeconomic Precariousness in Times of COVID-19: A Human Rights Quandary under the ECHR’ (2021) Polish Yearbook of International Law (forthcoming)
Abstract: The COVID-19 pandemic, and pandemics in general, affect socioeconomically disadvantaged people more severely. This is due not only to their precarious living, health, and working condi-tions, but also to public actions and omissions. However, their plight remains mostly invisible to the public, governments, and legislators, which raises many questions regarding respect of their fundamental rights. In this contribution, I explore these questions in light of the European Convention on Human Rights (ECHR). On the basis of the corpus of literature in the field, I show that the European Court of Human Rights (ECtHR) has developed some protection for people in a precarious situation, especially under the prohibition of inhuman and degrading treatment and the right to private and family life. This case law is likely to be relevant to the protection of socioeconomically underprivileged people during pandemics. However, this pro-tection is limited and imbued with pitfalls. Against this background, I show that there is an ur-gent need for practitioners and courts to explore an additional tool under the ECHR: the prohi-bition of discrimination on grounds of socioeconomic status. This tool can be used to tackle issues of misrecognition which particularly affect socioeconomically underprivileged people, who are more severely affected by public actions and omissions in the context of the current pandemic.

Gostin, Lawrence O, ‘COVID-19 Reveals Urgent Need to Strengthen the World Health Organization’ (2020) 323(23) Journal of the American Medical Association (JAMA) Forum 2361–2362

Gostin, Lawrence O et al, ‘US Withdrawal from WHO Is Unlawful and Threatens Global and US Health and Security’ (2020) 396(10247) The Lancet 293–295
Abstract: On May 29, 2020, President Donald Trump announced the USA would sever its relationship with WHO and redirect funds to US global health priorities. On July 6, 2020, the US administration officially notified UN Secretary-General António Guterres of its intention to withdraw from WHO membership. This notification coincides with record daily increases in COVID-19 cases worldwide and rising infections in more than three-quarters of the US states. In response, 750 leaders from academia, science, and law have urged the US Congress to block the president’s action.

Gostin, Lawrence O and Eric Friedman, ‘Imagining Global Health with Justice: Transformative Ideas for Health and Wellbeing While Leaving No One Behind’ (2020) 108(6) Georgetown Law Journal 1535–1606
Abstract: The disproportionate impact of COVID-19 on communities of color in the United States and immense vulnerabilities in lower-income countries has revealed a global health reality that is often overshadowed by decades of progress in overall global health, with new lows in child and maternal deaths every year, more people with HIV receiving access to lifesaving anti-retroviral therapy, and rising life expectancies. That reality is one of vast national and global inequalities, with the lived experiences of members of marginalized populations far removed from laudatory health headlines. Here, we propose an ambitious agenda to bridge the gap between progress in global health and the realities of vast swaths of the world’s people. These proposals could comprise part of a new post-COVID-19 global health architecture to prepare the world for the next pandemic and protect even the poorest people in the poorest countries. We offer three ideas that, collectively, would span from international law to domestic law and policy to grassroots empowerment: a Framework Convention on Global Health, health equity programs of action, and a Right to Health Capacity Fund.A Framework Convention on Global Health would be a global treaty based in the right to health and aimed at national and global health equity, creating a missing regime of accountability for the right to health. It would take the right to health to the next level, bringing specificity to presently vague human rights standards and providing concrete tools to achieve them. Health equity programs of action would be systemic, systematic, and inclusive approaches to address health inequities that each marginalized population experiences, across the determinants of health. And a Right to Health Capacity Fund would empower right to health advocacy and advance equity, accountability, and participation by providing grants to civil society organizations advocating for the right to health and by supporting accountability and participation mechanisms. If brought to fruition, these proposals, which would interact with and reinforce with one another, would have a transformative impact on global health, greatly reducing health inequities – leaving no one behind in health in both ordinary and extraordinary times.

Gostin, Lawrence O, Roojin Habibi and Benjamin Mason Meier, ‘Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Threats’ (2020) 48(2) Journal of Law, Medicine & Ethics 376–381
Abstract: Global health law is essential in responding to the infectious disease threats of a globalizing world, where no single country, or border, can wall off disease. Yet, the Coronavirus Disease (COVID-19) pandemic has tested the essential legal foundations of the global health system. Within weeks, the SARS-CoV-2 coronavirus has circumnavigated the globe, bringing the world to a halt and exposing the fragility of the international legal order. Reflecting on how global health law will emerge in the aftermath of the COVID-19 pandemic, it will be crucial to examine the lessons learned in the COVID-19 response and the reforms required to rebuild global health institutions while maintaining core values of human rights, rule of law, and global solidarity in the face of unprecedented threats.

Gostin, Lawrence O and Sarah Wetter, ‘Using COVID-19 to Strengthen the WHO: Promoting Health and Science Above Politics’ [2020] Milbank Quarterly Opinion_
_Extract: We are facing a once-in-a-century health emergency, with WHO under attack as never before. But out of a crisis can come an historic opportunity to strengthen WHO to become the health agency the world desperately needs. What might WHO reform look like if we truly want to empower the Organization, as we should? That reform should address the structural problems that put WHO in the crossfires of geopolitical disputes and force it to appeal to countries’ political interests instead of the best scientific evidence. First, it is important to consider how, and why, COVID-19 has become so politicized and divisive.

Guidi, Sebastian and Nahuel Maisley, ‘Who Should Pay for COVID-19? The Inescapable Normativity of International Law’ (2021) 96(2) NYU Law Review 375–430
Abstract: Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, former U.S. President Trump and others have suggested suing China for damages. This ‘lawsuit approach’ draws on a deep-seated conception of international law: States have a sovereign ‘right to be left alone’; the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations. In this Article, we explore this lawsuit approach—not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic while also pointing at deep theoretical implications that this novel crisis has for international law more broadly. Specifically, we make three novel claims. The first is that the arguments made using the lawsuit approach (based on the International Health Regulations and the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit approach faces difficulties stemming from the lack of deep normative agreement in international law on how to deal with unprecedented challenges such as COVID-19. Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit approach leads back to the global conversation about the allocation of losses that it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as ‘harm’ or ‘causation’), making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids and therefore requires complex reconstructions of what states owe to one another. Our third claim further extends the foregoing reasoning. The lawsuit approach relies on international law as a means to achieve corrective justice while denying its implications for distributive justice. We argue that this is conceptually impossible. Allocating responsibility for the pandemic implicates inherently distributive concepts: To decide, an adjudicator would need to rely on a pretorian rule detailing how much effort and expense countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independent of its content. The misfortunes derived from the pandemic are not conceptually different from the mis- fortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit approach might be unpleasantly surprised by where that road leads them.

Gutterman, Alan, 'Convention on Human Rights of Older Persons' (SSRN Scholarly Paper ID 3876618, 29 June 2021)
Abstract: Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.

Habibi, Roojin et al, ‘Do Not Violate the International Health Regulations during the COVID-19 Outbreak.’ (2020) 395(10225) Lancet 664–666
Abstract: The International Health Regulations (2005) (IHR) govern how 196 countries and WHO collectively address the global spread of disease and avoid unnecessary interference with international traffic and trade. Article 43 of this legally binding instrument restricts the measures countries can implement when addressing public health risks to those measures that are supported by science, commensurate with the risks involved, and anchored in human rights.1 The intention of the IHR is that countries should not take needless measures that harm people or that disincentivise countries from reporting new risks to international public health authorities. In imposing travel restrictions against China during the current outbreak of 2019 novel coronavirus disease (COVID-19), many countries are violating the IHR. We—16 global health law scholars—came to this conclusion after applying the interpretive framework of the Vienna Convention on the Law of Treaties and reaching a jurisprudential consensus on the legal meaning of IHR Article 43.

Habibi, Roojin et al, ‘The Stellenbosch Consensus on Legal National Responses to Public Health Risks’ (SSRN Scholarly Paper No ID 3746649, 2 December 2020)
Abstract: The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing COVID-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in ensuring the fulfillment of obligations, and fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 43 using the interpretive framework of the Vienna Convention on the Law of Treaties.

Halabi, Sam F, ‘The Origins and Future of Global Health Law: Regulation, Security, and Pluralism’ (2020) 108(6) Georgetown Law Journal 1607–1654
Abstract: The COVID-19 pandemic has presented a global health crisis unlike any seen in the seventy-five years since the United Nations and the World Health Organization were formed-"one that is killing people, spreading human suffering, and upending people’s lives. But this is much more than a health crisis. It is a human crisis. The coronavirus disease (COVID-19) is attacking societies at their core. It is therefore a crucial point around which to focus the capability of national and global institutions to address this essential threat to human health and life. Although the human right to the highest attainable standard of health was formally established with the adoption of the Constitution of the World Health Organization (WHO) in 1946 (entering into force in 1948), the field of global health law, oriented to deal with threats like COVID-19, is much younger. For many decades, WHO’s implementation of its mandate was limited to technical advice on measures that states (especially developing states) should adopt to promote individual and public health, as well as a successful campaign commencing in 1967 to address first smallpox and then additional vaccine-prevent-able diseases in children, which has now expanded even further In the early 2000s, the World Health Assembly (WHA), the governing body of WHO, revised the International Health Regulations. These revisions gave WHO broader authority to fight disease outbreaks and other public health events of international concern. The WHA also adopted the Framework Convention on Tobacco Control the first use of WHO’s Article 19 authority to conclude public health treaties. COVID-19 has challenged the sufficiency of even these significant global efforts.

Halabi, Sam and Ana Santos Rutschman, ‘Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: The Institutions of Global Vaccine Access’ (2021) Emory International Law Review (forthcoming)
Abstract: The COVID-19 pandemic has triggered a global vaccine race, and distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. As vaccines are distributed worldwide throughout 2021, this essay analyzes the problem of vaccine access as a critical question in the literature on sources of international law and the influence of those sources. As with past pandemics, research and development capacity is largely concentrated in the wealthy countries of Europe and North America with growing capabilities in East and South Asia. Over the course of 2020, some governments exercised extreme forms of ‘vaccine nationalism,’ refusing to share, or contemplate sharing, COVID-19 vaccines or related knowledge with any populations but their own. Other governments balanced the needs of their domestic populations with regional or global diplomatic objectives. Within this latter category, some governments shared bilaterally as a means of furthering local or international influence while others participated in a multilateral sharing mechanism coordinated by international organizations. Of course, as with past pandemics, the great majority of governments were left without vaccine development and manufacturing capacity, possessed few resources with which to procure vaccines under prevailing commercial circumstances, and were therefore vulnerable and open to overtures from both bilateral and multilateral acquisition sources. This essay aims to explain this unique constellation of vaccine development and access from the lens of international law, focusing on the nascent global governance regime for vaccine research, development, and distribution. As wealthy governments used bilateral contracts, Advanced Purchase Agreements (APA), to secure vaccines for populations in the world’s richest countries, those in poor countries remained at risk. Yet both multilateral and bilateral mechanisms emerged that prioritized vaccine access to those populations, an occurrence arguably at odds with realpolitik conceptions of how and why governments assess their legal options during international emergencies. We explore this dissociation between global public health imperatives and nationalist responses to the pandemic within the frameworks of ‘vaccine diplomacy,’ ‘vaccine nationalism’ and ‘viral sovereignty.’ The essay ultimately argues that, over the course of the last thirty years, a global regime of vaccine access has emerged and, while not yet cohesive or uniform, it has manifested common characteristics through two vaccine-preventable global public health emergencies: H1N1 pandemic influenza and COVID-19. A third, more regional epidemic, Ebola, demonstrated similar characteristics. Even more importantly, this regime has been formed and implemented by international organizations, rather than coordinated through individual governments.Within the broader context of international law scholarship, the essay contributes a significant case of international organizations as international law-makers. The essay focuses on two international agreements — the 2011 Pandemic Influenza Preparedness Framework (PIP), and the 2020 COVAX Vaccines Pillar of the ACT Accelerator (COVAX) — neither of which is a treaty, neither of which codifies customary international law as it would be conventionally defined, but both of which have been negotiated and implemented by international organizations. These organizations include specialized U.N. agencies like the World Health Organization and UNICEF, as well as international organizations technically formed under national law, but which include a broader set of decision-makers, including governments, like CEPI and GAVI. Each agreement represented a legal solution to disputes between high-income countries seeking to hoard medicines for their citizens, and low-income countries seeking greater shares of vaccines manufactured in high-income countries. Yet realizing those agreements depended on the coordinating and facilitating efforts of international organizations, rather than by individual or collective action by governments.The importance of this development is significant not only in the context of sources of international law, but in the relative influence of those sources. ‘Vaccine diplomacy’, the efforts of primarily China, India, and Russia to use access to COVID-19 vaccines for regional or international influence, has been fundamentally shaped by international organizations advocating an international norm of vaccine access codified in multilateral legal instruments. COVAX has conditioned the diplomatic outcomes China, India, and Russia may realize through vaccine dipomacy. The international norm of vaccine access did not emerge because of altruism or self-interest. Rather, it represents a brokered institutional compromise between vaccine nationalism and ‘viral sovereignty,’ the proprietary claims over pathogens by mainly biodiverse countries that limit access to the genetic resources necessary for the development of many therapeutics and vaccines. Without that access, there may be no vaccines and without vaccines there may be no vaccine nationalism. This balance has resulted in consecutive international legal arrangements, mostly facilitated by the World Health Organization, that indicate an interest in collaboration, division of gains from trade, and sustained governance structures: the Pandemic Influenza Preparedness Framework and COVAX. The recurrence of these legal arrangements suggests that in order to save the transaction costs generated by repeated development of ad hoc structures that centralize vaccine distribution, that a permanent facility may be developed. One possibility for such a facility is the Pandemic Influenza Preparedness Framework, adapted to become an all- or most-pathogen sharing international organization. A second possibility has been introduced in light of the COVID-19 pandemic: a Pandemic Treaty that establishes the terms under which pandemic vaccines will be developed and shared in the future.Whatever alternative materializes, this essay is the first to describe the phenomena that have driven the development of international vaccine sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

Halabi, Sam and Kumanan Wilson, ‘The Plausibility and Resolvability of Legal Claims Against China and WHO under the International Health Regulations (2005)’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 533
Abstract: Since the declaration of a public health emergency of international concern by the World Health Organization on January 30, 2020, accusations have been levelled against both the World Health Organization (WHO) and the People’s Republic of China (PRC) for failures to adequately and effectively notify the world about the COVID-19 threat. These accusations have been followed by calls for international sanctions, withdrawal of contributions to WHO’s work, and multilateral calls for investigations into the pandemic’s origins. Against a backdrop of increasingly bellicose rhetoric from governments, this chapter sets forth the most straightforward legal framework for resolving disputes about PRC and WHO actions: the International Health Regulations (2005). All disputing parties are members of the agreement, which provides specific mechanisms for dispute resolution. The chapter carefully assembles the known timeline from the outbreak of the novel coronavirus in Wuhan, PRC, to the PRC’s notification to WHO, to actions taken thereafter. It identifies the possible grounds for legal complaints, and analyzes the legal alternatives for resolution.

Halpern, Michaela S, ‘State Obligations Under Public International Law During Pandemics’ (2020) 35 Emory International Law Review 1–15
Abstract: COVID-19 became an international pandemic affecting every country and threatening a global economic collapse. This Article examines countries’ obligations under public international law to prevent and contain pandemics, and subsequent responsibilities to help other countries during pandemics. International Human Rights law recognizes a right to health and includes obligations. Nonetheless, it lacks a sufficient enforcement mechanism. Pandemics are analogous to war; therefore, the Responsibility to Protect (R2P) can help as countries utilize R2P to protect against atrocities. This Article argues that R2P is not merely a responsibility to protect against the worst that humankind has to offer but against the worst that can be offered to humankind.

Harrington, John, ‘Indicators, Security and Sovereignty during COVID-19 in the Global South’ (2021) 17(2) International Journal of Law in Context 249–260
Abstract: The spread of COVID-19 has seen a contest over health governance and sovereignty in Global South states, with a focus on two radically distinct modes: (1) indicators and metrics and (2) securitisation. Indicators have been a vehicle for the government of states through the external imposition and internal self-application of standards and benchmarks. Securitisation refers to the calling-into-being of emergencies in the face of existential threats to the nation. This paper contextualises both historically with reference to the trajectory of Global South states in the decades after decolonisation, which saw the rise and decline of Third-World solidarity and its replacement by neoliberalism and global governance mechanisms in health, as in other sectors. The interaction between these modes and their relative prominence during COVID-19 is studied through a brief case-study of developments in Kenya during the early months of the pandemic. The paper closes with suggestions for further research and a reflection on parallel trends within Global North states.

Heath, J Benton, ‘Pandemics and Other Health Emergencies’ in Oxford Handbook of International Law and Global Security (Oxford University Press, 2020)
Abstract: This chapter presents a critical analysis of the international law and institutions responsible for ensuring global health security. In 2005, the members of the World Health Organization adopted a thoroughly revised set of International Health Regulations, establishing an innovative and binding legal framework for declaring and responding to global health emergencies. At the heart of the Regulations was a particular conception of global health ‘security,’ which emphasized the early identification of health threats, and a coordinated global response that avoided undue interference with trade, travel, or human rights. In practice, the WHO has struggled to live up to these ideals, as it is unable to ensure that governments provide accurate information about disease outbreaks or to prevent unduly harsh responses when disease outbreaks are publicized. At the same time, the WHO has struggled to resolve the tension between expert advice and political discretion that lies at the heart of the Regulations. And it has faced competition from other institutions involved in pandemic response and from alternative normative visions of global health security. This chapter excavates these key tensions and identifies directions for further research and reflection.The aftermath of the COVID-19 pandemic will provide an unprecedented opportunity to rethink the foundations of the international regime for global health security. This rethinking requires a clear understanding of the existing legal and institutional framework, and of the the lessons already learned from previous crises.

Helfer, Laurence R, ‘Rethinking Derogations from Human Rights Treaties’ (2021) 115(1) American Journal of International Law 20–40
Abstract: Numerous governments have responded to the COVID-19 pandemic by declaring states of emergency and restricting individual liberties protected by international law. However, many more states have adopted emergency measures than have formally derogated from human rights conventions. This Editorial Comment critically evaluates the existing system of human rights treaty derogations. It analyzes the system’s problems, identifies recent developments that have exacerbated these problems, and proposes a range of reforms in five areas—embeddedness, engagement, information, timing, and scope.

Hoffa, David, ‘Statism’s Catch-22: An Austro-Libertarian Analysis of “Self-Determination of Peoples” under International Law’ (SSRN Scholarly Paper ID 3821745, 11 March 2021)
Abstract: ‘Self-determination of peoples’ is a relatively new international law principle which has gone through numerous changes in its history, making it an elusive concept. The principle has received interest the last 30 years, prompted at first by the Soviet breakup, more recently by growing nationalist movements, and most recently by states’ totalitarian measures enforced in the name of combating COVID-19. Important issues concerning the future of self-determination’s status in and impact on the international system remain. This paper outlines and analyzes the history of self-determination using a three-phase framework. In Phase One, the principle was a non-legally binding political principle. In Phase Two, the principle became legally binding but was limited to the decolonization context. In Phase Three, the principle becomes a universally accepted human right that some judges and jurists argue has become a peremptory norm of international law (jus cogens), which no state can violate under any circumstances. This historical inquiry reveals that the principle has always been asserted and argued against by states with the goal of maintaining or gaining power for themselves. This paper then summarizes the principle’s modern incarnation as a human right under international law, whereby ‘peoples’ – i.e., the entire population of a state’s territory – have the right to both ‘external’ and ‘internal’ self-determination. ‘External’ self-determination is the right of a people to have a state with independent international status. ‘Internal’ self-determination means that the people in the state must be free to pursue their economic, social, and cultural development, while having adequate ability to participate in government. Self-determination and secession are often paired together, but current international law does not directly allow or disallow secession. This paper then delineates theoretical issues the modern incarnation of the self-determination principle poses for statism and the international system, including: how to define ‘peoples’ under the principle; what the relationship of the principle to states’ sovereign territorial integrity should be; how to redraw state boundaries after a successful secession; whether radical self-determination leads to violent conflict; and what is the relationship of unfettered secession to liberal-democratic theory that much of the international system is based upon. Then, this paper applies Austro-libertarian theory to these issues, arguing that: the principle relies on an unfounded collectivist conception of rights; the international system slavishly adheres to the incoherent concept of states’ sovereign territorial integrity; the principle, when its inconsistencies are removed, must theoretically justify unfettered secession; and the conflation of democracy with both liberalism and government by consent keeps properly understood self-determination from being achievable in fact. This paper concludes that the modern self-determination principle’s theoretical deficiencies and inconsistencies present a catch-22 dilemma for the international system. Either self-determination must be extended to take supremacy over state territorial integrity, or it must be rejected explicitly and entirely. Either choice, or trying to split the difference between them, incentivizes delegitimization of statism and the international system.

Ibrahim, Essam El-Din Mohamed, ‘“The Extent of the Link between the Hegemony of the Major Powers Scientifically and Economically and Novel Coronavirus Spread”: Study within the Framework of the Public International Law’ (2020) 7(8) Open Access Library Journal 1–17
Abstract: The international community is now less concerned with military forces as much as science, especially biological sciences, which increase the chance of possessing a large scientific force whose effects, if exploited by the bad exploitation, is stronger and fiercer than many military wars. This is what we are currently dealing with on the international scene in light of coronavirus (COVID-19) spread. The researcher believes in this paper that the reason for this is the competition of the five major countries to acquire all the power sources that would help to dominate the world and the global economy. This threatens certainly the international security and peace. In this context, the researcher believes that a great benefit to the United States of America destroying China and its significantly growing economy.

Ide, Tobias, ‘COVID-19 and Armed Conflict’ (SSRN Scholarly Paper ID 3603248, 20 May 2020)
Abstract: This article studies the impact of COVID-19 on armed conflict. The pandemic has significant health, economic and political effects. These can change the grievances and opportunity structures relevant for armed conflicts to either increase or decrease conflict risks. I analyse empirical evidence from Afghanistan, Colombia, India, Iraq, Libya, Pakistan, the Philippines, Thailand and Yemen from the first four months of 2020. Results suggest that COVID-19 provides little opportunities for health diplomacy and cooperation, but it also has not yet driven grievances to a level where they became relevant for armed conflicts. Three countries have encountered temporary declines in armed conflicts, mostly due to strategic decisions by armed groups to account for impeded logistics and increase their popular support. Armed conflict levels have increased in five countries, with parties exploiting either state weakness or a lack of (international) attention related to COVID-19. This is a worrisome trend given the tremendous impacts of armed conflict on human security and the capabilities of countries to deal with health emergencies.

Igbozurike, John Kennedy, ‘Covid-’19 Crisis: An International Legal Evaluation of the Chinese Censurability’ (2020) 1(1 - Special (Covid 19) Edition) Journal of Advanced Public International Law_
_Abstract: From a case of beds waiting for patients to a paradigm shift of patients waiting for beds. This is the new reality many countries around the world have been forced to contend with. The novel coronavirus is not just snuffing life out of people. It is also destroying livelihoods, relationships etc. The virus has indeed inflicted an unprecedented magnitude of damage on the globeFlowing from the aforementioned, the question that has continued to spark burgeoning interest in the minds of many is: can China be held culpable for the spread of the contagion? This paper takes the stand that though there might be a possibility that China didn’t create the coronavirus intentionally; its malfeasance has certainly led to the spread of the global contagion. Specifically, the Chinese government appears to be complicit in failing to communicate timely information to the international community and relevant authority (the World Health Organization).

The International Journal of Children's Rights (2021) 29(2): Special Issue: COVID-19 and Children’s Rights: Space for Reflection, Tracing the Problems and Facing the Future
This open access Special Issue includes:
Bouah, Nicole and Julia Sloth-Nielsen, ‘Towards Comprehensive Guidance for States in the African Region to Respond to Children’s Rights in Emergencies, Disasters and Pandemics’ 447–474
Abstract: The COVID-19 pandemic spread has it impacted health systems, economies and communities across the African continent. It has also exacerbated risks already faced by children: limiting access to education, reducing protection from sexual and gender-based violence, harmful traditional and cultural practices including child, early or forced marriage (CEFM), female genital-mutilation (FGM); and further limiting access to reproductive services and food insecurity. This article illustrates that because demonstrably different considerations arise by comparison to children’s experiences in the global north, it would be a valuable contribution for the African Committee of Experts on the Rights and Welfare of the Child to develop a General Comment on state responses to upholding children’s rights in the context of epidemics, pandemics and emergencies, tailored to the specificities of the region.
Croke, Rhian et al, ‘Utilising the International Human Rights Framework to Access the Benefits of Paediatric Research in The COVID Era: A Wales Case Study’ 326–352
Abstract: This article uses Wales as a case study to discuss the challenges to accessing the benefits of paediatric research before and during the COVID-19 pandemic. Due to the rapidly changing political and legislative landscape, it is critical that health professionals working for the benefit of children can utilise international human rights treaties and the most relevant General Comments that offer a bridge between legalistic provisions and practice. Additionally, it is vital for health professionals to interpret and understand domestic children’s rights legislation, including tools for implementation for realising children’s rights. This article shares learning from the Children’s Hospital for Wales, Children and Young Adult Research Unit’s endeavour to challenge the Welsh Government to pay due regard to the rights of the child in ensuring children can access the benefits of paediatric research; including research concerning children’s role in infection and transmission, during the pandemic.
Khoso, Abdullah and Ahmad Hilmi Mohamad Noor, ‘Migrant Workers in Malaysia: COVID-19’s Impact on the Rights of Their Children and Siblings in Pakistan’ 475–495
Abstract: With the help of narratives of migrant workers in Kuala Lumpur, Malaysia, this article seeks to understands the impacts of the COVID-19 (known as the 2019 novel coronavirus) pandemic on the rights of their children and children’s siblings in Pakistan. The pandemic impacted the flow of remittances to their families, which further impacted children’s right to education, livelihoods and food. They also revealed that the pandemic had impacted their children’s right to protection, play and development. Children had lost the freedom to play and go outside, socialise and learn. Migrant workers’ children and siblings with limited financial support should have been provided with adequate financial and social security support by Pakistan, but they were not. They also revealed that during the pandemic, children were also regular victims of harsh treatment and physical abuse by adult family members, reflecting the exacerbation of issues of breaches of their fundamental right to protection and emotional integrity.
Laura Lundy, ‘Life Under Coronavirus: Children’s Views on their Experiences of their Human Rights’ 261–285
Abstract: Children have a right to have their views sought and given due weight on all matters affecting them, including at times of emergency and crisis. This article describes the process and findings of the ground-breaking CovidUnder19 survey ("Life Under Coronavirus") which was co-designed with children for children, capturing the experiences of over 26,000 children in 137 countries as to the realisation of their human rights during the first six months of the COVID-19 pandemic. Key findings are discussed through the lens of the CRC' s four general principles, read alongside children's rights, inter alia, to education, play and to be protected from harm. It argues that governments and public bodies should have sought children's views – not just because they were under an obligation to do so – but because such engagement, now and in crises to come, provides an early warning system that enables decision-makers to mitigate some of the adverse consequences of their responses for children and their rights.

Iskandar, Pranoto, ‘The Pandemic Case for Supra-National Governance: A Redux’ (2020) 7 Indonesian Journal of International and Comparative Law 297–312
Abstract: It is obvious that the current global fallout as a result of the coronavirus pandemic cannot be separated from the absence of a strong and effective governance at supranational level. To specify, it is the failure of the World Health of Organization (WHO) in sending out an early warning to the international community. This failure is strongly suspected due to China’s ever-growing political clout in international bodies, such as the WHO. It is noted that ‘Beijing succeeded from the start in steering the WHO, which both receives funding from China and is dependent on the regime of the Communist Party on many levels.’ Thus seen, any idea that suggests to put forward accountability, such as asking for China to be held accountable, regardless of the soundness of its logics, is far-fetched. It is worth recalling the 2015 Report by the Commission on Global Governance that the world “must promote systemic approaches in dealing with [issues of common concern]. For that reason, it is important to take a step back in order to understand the nature of today’s global order in an effort to propose a meaningful move forward. In fact, the 2015 report of the Commission on Global Governance has called for ‘[t]he creation of adequate governance mechanisms [that] must be flexible enough to respond to new problems and new understanding of old ones. There must be an agreed global framework for actions and policies to be carried out at appropriate levels.’ In this vein, this commentary argues that it is to timely to revive the debate in support of a more robust and effective global governance.

Joseph, Sarah, ‘International Human Rights Law and the Response to the Covid-19 Pandemic’ (2020) 11(2) Journal of International Humanitarian Legal Studies 249–269
Abstract: States have duties under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights and Article 6 of the International Covenant on Civil and Political Rights to prevent, control and treat covid-19. Implementation of these three obligations is analysed, taking account of countervailing human rights considerations. Regarding prevention, lockdowns designed to stop the spread of the virus are examined. Control measures are then discussed, namely transparency measures, quarantine, testing and tracing. The human rights compatibility of treatment measures, namely the provision of adequate medical and hospital care (or the failure to do so), are then examined. Finally, derogations from human rights treaties in times of pubic emergency are discussed.

Joshpe, Brett, ‘Considering Domestic and International Frameworks for Analyzing China’s Potential Legal Liability in the Aftermath of COVID-19’ (SSRN Scholarly Paper ID 3598614, 11 May 2020)
Abstract: The COVID-19 pandemic has imposed a human and economic cost on the world that was virtually unimaginable only a few months ago. Credible investigative sources agree with virtual unanimity that COVID-19 emerged from Wuhan in China, either as a result of human wildlife consumption at wet markets or from a laboratory that studies diseases in bats. China has long been aware of the risks that both scenarios presented. Even more disturbingly, however, China may have hid valuable information about COVID-19 that could have significantly improved the international community’s ability to respond to, and fight, the pandemic. China’s apparent obfuscation, along with the alleged failures of other groups such as the World Health Organization, has arguably resulted in trillions of dollars in liabilities, millions of sicknesses, and hundreds of thousands of lost lives—with those numbers mounting daily.The emergence of COVID-19 within China and the Chinese government’s failure to promptly and transparently provide needed information to the international community raises the question whether the Chinese government and/or its officials could be held civilly or criminally liable under international law or U.S. domestic law. While China arguably violated numerous international conventions and obligations, and while there would certainly be liability according to U.S. common law principles if this scenario involved a private party, the reality is that neither is likely adequate to impose liability on China under the current state of the law, meaning the international community would need to create a new framework for imposing international legal liability—something the U.S. should be very weary of—or the U.S. would need to revoke China’s sovereign immunity, something that lawmakers are currently considering. Either way, the COVID-19 outbreak demands serious consideration of how the legal system could—and whether it should—be updated to account for the current crisis and any future pandemics. This article discusses the Chinese government’s potential violations of existing international law and international norms, as well as potential theories of civil and criminal liability arising from the damages caused by the COVID-19 pandemic. Part I provides an introduction. Part II provides a background of key facts as currently understood and lays out the role that the Chinese government apparently played in enabling COVID-19 and failing to contain its global spread. Part III discusses the manner in which China may have run afoul of various treaties and civil tort principles, as well as the difficulties with imposing civil liability for these violations. Part IV articulates theories about how traditional criminal liability might apply to China and why international criminal law is generally too limited in scope to impose liability. Finally, Part V suggests a potential framework for ensuring accountability for the COVID-19 outbreak and any future pandemics. This article concludes that although litigation—and civil and criminal liability both at the domestic and international level—can be effective tools in the diplomatic arsenal of nations, practical realities and the current legal framework limit China’s potential liability arising from the COVID-19 crisis. Nevertheless, this paper could serve as a starting point for discussing whether a new framework is necessary.

Kansra, Deepa, ‘Rights and Obligations during COVID-19: A Look at Selected UN Statements’ (SSRN Scholarly Paper ID 3637217, 15 May 2020)
Abstract: In April 2020, the UN Office of the Commissioner of Human Rights & the Committee under ICESCR [International Covenant on Economic, Social, Cultural Rights] issued general and special statements addressing the challenges being faced by individuals & States in light of the prevailing global health crisis.The statements highlight the key human rights principles and standards applicable in light of COVID 19. At the same time, developments around the world open up for scrutiny questions on the current status of human rights and responsibilities. Several themes have become critical including the powers of states to declare emergency, the limitations on human rights derogations, and the scope and applicability of rights including right to scientific information.

Kataria, Karan and Dipshikha Kumar, ‘Delving the Role of WHO Vis-a-Vis COVID-19’ (2020) 1(1) Indraprastha Law Review 1–14
Abstract: Study and investigation can be said to be search for truths, for facts and for certainties.Investigation is, in fact, the foundation of setting up future course of action and policies to overcome hurdles faced in the past which can be used for a healthy future. The World Health Organization has a central role to play in the case of issues pertaining to epidemic and pandemic and a proactive approach is required by the organization to curtail such problems. In this paper, the authors have tried to analyse the actions of the WHO and the approach adopted by the organization to address the pandemic. The authors have tried to critically analyse the allegations forwarded against the role of WHO. This paper is a small attempt to highlight the importance of such International organizations at the time of pandemic and the research proposes to develop a framework for the shortcomings that have engulfed the transparency, Independence and accountability of an international organization like WHO.

Khalatbari, Y and Abbas Poorhashemi, ‘“Environmental Damage”: Challenges and Opportunities in International Environmental Law’ (SSRN Scholarly Paper ID 3485647, 12 September 2019)
Abstract: The consensus of the concept of ‘environmental damage’ by the international community is crucial to address the issues concerning liability and responsibility of states in international environmental law. Moreover, compensation of environmental damage is very difficult to achieve in international environmental law. ‘Compensation’ is reparation applying for loss or damage as a result of acts or omissions that are subjects of international law and the effect of natural disasters on the people, property and the environment. The complexity of human-caused environmental damage, the limit of prevention and compensation of damage in the national, regional and global context are the main limit of the development of international law. For all these reasons, the consensus of ‘environmental damage’ in international environmental law is being considered as a key to define international responsibility of state. The initial aim of this paper is to examine the evolution of the concept of ‘environmental damage’ in international environmental law, and secondly, to determine the challenges of this concept in international environmental law.

Klabbers, Jan, ‘The Second Most Difficult Job in the World: Reflections on Covid-19’ (2020) 11(2) Journal of International Humanitarian Legal Studies 270–281
Abstract: This article addresses the ecology and functioning of the World Health Organization in a time of crisis, zooming in on the pressures on both the organization and its leadership generated by the circumstance that the organization cannot avoid allocating costs and benefits when taking decisions. The article argues that the covid-19 crisis illustrates how international organizations generally and the who in particular are subjected to conflicting demands, and how this impacts on the role of decision-makers. The latter, it transpires, need to display considerable practical wisdom.

Klein, Natalie, ‘International Law Perspectives on Cruise Ships and Covid-19’ (2020) 11(2) Journal of International Humanitarian Legal Studies 282–294
Abstract: Cruise ships have contributed to the spread of covid-19 around the world and State responses to the pandemic have needed to account for the presence of these ships in their ports and the medical treatment of both passengers and crew on board. This contribution outlines the key bodies of international law that must be brought to bear in deciding on State action in response to cruise ships and their covid-19 cases: the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance. While these laws tend to reinforce each other, it is argued that the need for humanitarian considerations to feature strongly in State decision-making is challenged by systemic weaknesses.

Kondoch, Boris, ‘Covid-19 and the Role of the Security Council as Global Health Peacekeeper’ (2019) 23(1–2) Journal of International Peacekeeping 105–116
Abstract: The covid-19 pandemic has become one of the greatest challenges the world has faced since the founding of the United Nations. The following article provides a short overview, which addresses the United Nations’ efforts in minimizing the negative impact of the virus on peace and security by focusing on the potential role of the Security Council from a normative perspective.

Kotzamani, Panagiota, ‘Failure to Act in Times of Pandemic: Is There a Role for the International Criminal Law Doctrine of Superior Responsibility?’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 311–320
Abstract: This article explores the responsibility of military or civilian superiors in international criminal law for their failure to act in relation to a potentially lethal virus epidemic or pandemic. In this direction, two different angles of the issue are discussed. The first focuses on the responsibility of individuals in positions of power for their failure to prevent the spread of the virus or provide adequate health support to an epidemic or pandemic affected population, when this population is used as a target group for the commission of crimes against humanity, war crimes or even genocide. The second refers to the responsibility of these superiors for their failure to prevent their subordinates to use such an epidemic or pandemic as a mean to commit crimes against humanity or war crimes. It is argued that, in order for superior responsibility to be attributed in these circumstances, a careful consideration on the theory of omission and the nature of superior responsibility is required.

Kowalski, Wawrzyniec, ‘Impact of COVID-19 Pandemic on the Legal Conditions of Safety and Security of Selected Countries’ (2020) 23(Special Issue 3) European Research Studies Journal 253–273
Purpose: The aim of the article is to show a kind of reevaluation of international legal regulations on safety and security of contemporary countries. The essence of this process is a visible reversal of the perception of legal regulations contained in legal acts of the universally understood international law as effective. The author’s intention is to characterize various models of public safety management in the time of a pandemic. In particular, the author analyzes the effectiveness of the most controversial measures used by state authorities to limit the effects of the COVID-19 virus.
Design/Methodology/Approach: The article refers to both selected solutions functioning in the national law systems of individual countries, as well as acts of international law. The analysis essentially uses the comparative and historical-legal methods. The text is based on the analysis of selected legal acts, positions of representatives of the doctrine, literature, and documents.
Findings: The results showed that despite the continuous process of positivization of threats - both at the level of national and international law and the creation of more and more perfect catalogs of human rights, in the face of the coronavirus pandemic, the current belief in the durability of the developed value system in the field of protection of individual rights becomes seriously threatened. It was emphasized that the pandemic period was a specific test of the mechanisms of democracy. Attention was drawn to the high probability of changes in the content of the international agreements in force so far in the field of international human rights law. Moreover, it was indicated that once the current threat is contained, the necessary redefinition of the material legal and procedural conditions related to the application of disease reduction measures in pandemic states in national legal systems will occur. Practical Implications: The considerations in the article may be useful in designing national models of public safety management.
Originality/Value: The article extends the available literature in the field of both international security law and legal security conditions of individual countries. The study offers an in-depth insight into activities - often controversial - undertaken by the authorities of selected countries under various models of public safety management and protection of citizens’ health.

Kum, Ekia Gilbert, ‘What Can the World Health Organization (WHO), and the 1979 Geneva Convention (CLRTAP) Do, under the Rules of Public International Law (PIL), to Curb Air Pollution Which Has Amplified the Death Toll Rate of the Coronavirus-19 in the World?’ (SSRN Scholarly Paper ID 3635016, 24 June 2020)
Abstract: The most important natural resource on the planet earth is air because people, animals and plants (vegetation) need to breathe in clean air that is not polluted in order to be alive. Breathing is a vital natural process which is called respiration. In the process of respiration, also known as ‘cellular respiration’, a living subject or thing takes in oxygen from the air and expels carbon dioxide (CO2) as a waste product. Therefore, if the respiration of ambient air is intoxicated by the gaseous or chemical substances produced by air pollution (PM 10, 2.5, or 0.5), the lives of people, animals and plants, will be in serious danger. The environment, structures and the ecosystem will also suffer destruction and depletion of the ozone layer (effects of the ozone hole). This Article strives to scientifically investigate, analyse and demonstrate that the actual public international law rules put in place have not substantively provisioned the remedies and constitutional or treaty mechanisms which should tackle air pollution effectively. Legal Scholar will draw on the public international law instruments of this research question in order to make a preliminary proposed reform that should remedy the devastating effects of air pollution in the World. The Article envisages to substantiate on how air pollution has contributed in increasing the number of deaths on the coronavirus-19 patients around the globe. The study moves on to advice COVID-19 victims on the tortious liability actions they could engage against their national Governments, if they can substantiate that, air pollution aggravated their COVID-19 situations, which injuriously caused them any substantiated loss or harm. Researcher will move on with his conclusion by inciting Nation-States and the United Nations Organizations, to study the reform he has proposed in this introductory Article and make use of such. The continuation of the greater part of the project will comparatively analyse and investigate on how the national and public international law rules of air pollution countries like France, Britain, the USA, China and India regulate air pollution? The complete project of which this Article is the first part, will be concluded through the presentation of a proposed public international law instrument that should effectively regulate air pollution. Such an instrument will be in the form of a model drafted international treaty of a jus cogens character. It will aim at drastically curbing air pollution and imposing compliance on all Members and non-Members of the United Nations Organization (UNO), who have ratified or not the proposed reform, if adopted by the United Nation Organization (UNO).

Lauc, Zvonimir and Marijana Majnarić, ‘EU Legal System and Clausula Rebus Sic Stantibus’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 785–804
Abstract: We are witnesses and participants of Copernican changes in the world which result in major crises/challenges (economic, political, social, climate, demographic, migratory, MORAL) that significantly change ‘normal’ circumstances. The law, as a large regulatory system, must find answers to these challenges. Primarily, these circumstances relate to (i) the pandemic - Corona 19, which requires ensuring economic development with a significant encroachment on human freedoms and rights; (ii) globalization, which fundamentally changes the concept of liberal capitalism as the most efficient system of production of goods and services and democracy as a desirable form of government; (iii) automation, robotics, artificial intelligence, and big data are changing the ways we work, live, communicate, and learn in a Copernican manner. The law should serve to shape the relationship between people in order to realize a life of love and freedom. This is done to the greatest extent through the constitutional engineering of selected institutions. The legal system focuses on institutions that have a raison d’etre in their mission, which is read as ‘ratio legis’, as a desirable normative and real action in the range of causal and teleological aspect. Crisis situations narrow social cohesion and weaken trust in institutions. It is imperative to seek constitutional engineering that finds a way out in autopoietic institutions in allopoietic environment. We believe that the most current definition of law is that = law is the negation of the negation of morality. It follows that morality is the most important category of social development. Legitimacy, and then legality, relies on morality. In other words, the rules of conduct must be highly correlated with morality - legitimacy - legality. What is legal follows the rules, what is lawful follows the moral substance and ethical permissibility. Therefore, only a fair and intelligent mastery of a highly professional and ethical teleological interpretation of law is a conditio sine qua non for overcoming current anomalies of social development. The juridical code of legal and illegal is a transformation of moral, legitimate and legal into YES, and immoral, illegitimate and illegal into NO. The future of education aims to generate a program for global action and a discussion on learning and knowledge for the future of humanity and the planet in a world of increasing complexity, uncertainty and insecurity.

Lebret, Audrey, ‘COVID-19 Pandemic and Derogation to Human Rights’ (2020) 7(1) Journal of Law and the Biosciences Article lsaa015
Abstract: Under international human rights law, States can limit the exercise of most human rights if it is necessary to protect the rights of others or collective interests. The exceptional circumstances brought by the COVID-19 global pandemic lead to more extensive, on both their scope and their duration, restrictions of human rights than in usual times. This article introduces the States’ specific right to derogate to human rights in circumstances of public emergency and the conditions of a legitimate derogation in the context of COVID-19. It argues that States must ensure that the general measures they adopt to face the crisis do not disproportionally harm vulnerable people.

Lee, Kelley and Julianne Piper, ‘The WHO and the COVID-19 Pandemic: Less Reform, More Innovation’ (2020) 26(4) Global Governance: A Review of Multilateralism and International Organizations 523–533
Introduction: Public displays of gratitude around the world, championing frontline health workers as heroes during the COVID-19 pandemic, have contrasted sharply with the criticisms directed toward the World Health Organization (WHO). As the ‘directing and coordinating body for international health work,’ the UN specialized agency has arguably been at the front line of the front line, gathering essential epidemic intelligence, convening scientific research collaborations, and compiling technical guidelines on diagnostics, clinical care, prevention, and mitigation strategies. While playing this unique role, including regular media briefings throughout the pandemic, WHO officials have fielded questions about its performance against the backdrop of relentless increases in coronavirus infections and deaths worldwide. The withdrawal of funding and membership by the US government,1 and resolution adopted by Member States at the 73rd World Health Assembly ‘to initiate … [an] impartial, independent and comprehensive evaluation … [of] the WHO-coordinated international health response to COVID-19,’2 reflects a concerning loss of confidence in the WHO at a time when the world needs it the most. So, how did we get here and what is the way forward?

Lee, Tsung-ling, ‘Global Health in a Turbulence Time: A Commentary’ (2020) 15(1) Asian Journal of WTO & International Health Law and Policy 27–60
Abstract: The emergence of the 2019 novel coronavirus—or COVID-19—outbreak has resuscitated global attention on the state of global health governance. Legal scholars and political scientists have long been fascinated by global governance of health, which had galvanized intellectual discourse that began almost two decades ago. Increasingly, global health operates in a complex, multipolar world, which is informed by pluralistic values. The ever-changing configuration of players, interests and values adds complexity to the global health landscape. It is timely to reexamine the landscape of global health, where new transnational challenges—such as galvanizing a global concerted effort towards international infectious disease control, financing global health activities in a sustainable manner, and achieving Universal Health Coverage—also inform new global health configuration. The article takes a historical view and traces the evolving of the global health landscape and examines the various of norms, processes and institutions that form global governance of health. The article also identifies the strengths and weakness of the International Health Regulations—the international legal architecture for international infectious disease control—as the novel coronavirus outbreak unfolds.

Lim, Darren J and Nathan Attrill, ‘Australian Debate of the China Question: The COVID-19 Case’ (2021) Australian Journal of International Affairs (pre-published article, published 8 June 2021)
Abstract: Debate within Australia regarding the bilateral relationship with China is complex, contentious and often lacks clarity. Informed by basic international relations theory, we identify two dividing lines within this debate. First, whether understanding China’s behaviour is most effectively done through a unitary actor framework, or whether it is essential to look inside the ‘black box’ of the Chinese party-state. Second, whether one is more concerned about the ‘Thucydides trap’ or ‘Munich’—that is, are the consequences of an overreaction or an underreaction more concerning when interpreting China’s intentions and responding to perceived threats. These dividing lines generate four ideal-type policy viewpoints that we label Balancers, Hedgers, Engagers and Reformers, and apply in the Australian context. We then overlay our framework onto the public debate in Australia, selecting a specific bounded case study: commentary and analysis concerning China’s behaviour throughout the COVID-19 pandemic of 2020, in particular responding to Australia’s call for an international inquiry. Our objective is to progress an often circular debate by offering an accessible frame that clarifies and synthesises fundamental disagreements.

Limsira, Patthara, ‘The Lawsuit against the United States for Causing COVID-19’ (2020) 13(2) Journal of East Asia and International Law (JEAIL) 233-246
(pre-published version of article available on SSRN)
Abstract: The coronavirus disease 2019 (COVID-19) presents varieties of questions concerning not only international law, but also the domestic laws of states affected by this global pandemic. One of legal issues amid COVID-19 pandemic is the state immunity principle. There have been many lawsuits against foreign state challenging the state immunity principle amid the COVID-19 pandemic. In Thailand, the Chiangmai Provincial Court (court) addressed in its judgment that it did not have jurisdiction to adjudicate the compensation for COVID-19 pandemic’s damages dispute between Thai restaurant owner and the United States (US). Notwithstanding surrounding controversies over COVID-19 pandemic, the court considered the motion denied. The main implication of the judgment is that Thailand accepted state immunity principle under customary international law. This research briefly explains the sovereign immunity doctrine relating to this case, summarizes the facts and analyses the potential ramifications of this judgement under international law.

Lin, Ching-Fu, ‘COVID-19 and the Institutional Resilience of the IHR (2005): Time for a Dispute Settlement Redesign?’ (2020) 13(1) Contemporary Asia Arbitration Journal 269–290
Abstract: The global outbreak of COVID-19 has triggered governments around the world to take a series of health measures in response to the public health challenges that have arisen, as well as their corresponding social, economic, and political ramifications. The World Health Organization (hereinafter ‘WHO’) and its International Health Regulations (2005) (hereinafter ‘IHR (2005)’) play a pivotal role in providing a global governance framework to guide and coordinate governments through a series of substantive and procedural requirements. During the COVID-19 pandemic, however, some State Parties and the WHO Director-General have allegedly not acted in compliance with the IHR (2005), which may lead to disputes between State Parties or even between the WHO and State Parties. Yet the IHR (2005) seems to lack an adequate dispute settlement mechanism that facilitates peaceful resolution. This article therefore examines the multilayered dispute settlement mechanism under Article 56 of the IHR (2005), and explores the critical flaws of its institutional design. It further calls for the establishment of a Compliance and Accountability Committee via a minor revision of the IHR (2005) to actively monitor, evaluate, and issue Specific Comments on the practices of the State Parties and the WHO in terms of their conformity with the treaty. By adding this quasi-adjudicative branch to existing mechanisms, the Compliance and Accountability Committee offers an expeditious, proactive, and less costly channel to publicly name those whose measures are not in conformity with the IHR (2005) with detailed legal reasoning, creating a stronger compliance pull and a normative reference for dispute settlement. While the proposed institutional redesign is not and cannot be an alternative to existing dispute settlement mechanisms, it may supplement and reinvigorate ways in which to resolve disputes in an innovative manner.

Liu, Hin-Yan, Kristian Lauta and Matthijs Maas, ‘Apocalypse Now?: Initial Lessons from the Covid-19 Pandemic for the Governance of Existential and Global Catastrophic Risks’ (2020) 11(2) Journal of International Humanitarian Legal Studies 295–310
Abstract: This paper explores the ongoing Covid-19 pandemic through the framework of existential risks – a class of extreme risks that threaten the entire future of humanity. In doing so, we tease out three lessons: (1) possible reasons underlying the limits and shortfalls of international law, international institutions and other actors which Covid-19 has revealed, and what they reveal about the resilience or fragility of institutional frameworks in the face of existential risks; (2) using Covid-19 to test and refine our prior ‘Boring Apocalypses’ model for understanding the interplay of hazards, vulnerabilities and exposures in facilitating a particular disaster, or magnifying its effects; and (3) to extrapolate some possible futures for existential risk scholarship and governance.

Lo, Chang-Fa, ‘The Missing Operational Components of the IHR (2005) from the Experience of Handling the Outbreak of COVID-19: Precaution, Independence, Transparency and Universality’ (2020) 15(1) Asian Journal of WTO and International Health Law and Policy 1–26
Abstract: In December 2019, there was an outbreak of pneumonia caused by Novel Coronavirus (COVID-19) in Wuhan City, China. It was unfortunate that the outbreak has taken so many lives. It was partly because that the handling of the outbreak by the World Health Organization (hereinafter "WHO’) was not timely or appropriate. There are so many positive and negative lessons we can learn from the outbreak. At the international level, WHO is supposed to lead the world to fight against the outbreak based on the International Health Regulations (2005) (hereinafter "IHR (2005)’). However, it is apparent that there are many operational problems with the IHR (2005). The role of the IHR (2005) seems not to be critical in guiding States Parties for tackling the outbreak. The operation of the IHR (2005) can definitely be improved to make the system more capable of addressing lifethreatening and life-saving issues. First, the compliance with the requirements of the IHR (2005) should be seriously addressed. Second, the independence of the Emergency Committee and that of the WHO Director-General should also be addressed so as to respect the desirable independence in performing their duties. Third, the transparency issue should also be addressed to help the country where the public health emergency of international concern (hereinafter ‘PHEIC’) occurs to faithfully respect the disclosure requirement and to become more transparent. Fourth, the timeliness and precautionary principle should be dealt with so as to require a timely decision of a PHEIC and to ensure that the precautionary principle plays a supplementary role to help the declaration of a PHEIC in a timely and efficient manner Fifth, WHO, its Director-General and States Parties of the IHR (2005) should also be expected to allow non-Parties’ meaningful participation in the operation of the IHR (2005).

Mazur-Kumrić, Nives and Ivan Zeko-Pivač, ‘Triggering Emergency Procedures: A Critical Overview of the EU’s and UN’s Response To The Covid-19 Pandemic And Beyond’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 89–119
Abstract: The large-scale COVID-19 pandemic is a severe public health emergency which poses distressing social and economic challenges to the international community as a whole. In order to provide immediate and effective support to affected welfare and healthcare systems as well as to build their lasting, inclusive and sustainable recovery, both the European Union and the United Nations have introduced a number of urgent measures aiming to help and protect citizens and economies. This paper looks into the specificities of urgent procedures launched and carried out by the two most influential international organisations with a view to rapidly respond to the unprecedented COVID-19 crisis. More specifically, it focuses on the involved institutions and steps of urgent procedures as well as on their most remarkable outcomes. In the case of the European Union, the emphasis is put primarily on two Coronavirus Response Investment Initiatives (CRIIs), adopted during the Croatian Presidency of the Council in one of the fastest legal procedures in the history of the European Union, and the Recovery Assistance for Cohesion and the Territories of Europe (REACT-EU) as an extension of the CRIIs’ crisis repair measures. The overarching United Nations’ response is assessed through an analysis of its urgent policy agenda developed on the premise that the COVID-19 pandemic is not only a health and socio-economic emergency but also a global humanitarian, security and human rights crisis. This particularly includes procedures foreseen by the Global Humanitarian Response Plan (GHRP) and the Strategic Preparedness and Response Plan (SPRP). In addition, the aim of the paper is to provide a critical overview of the subject by highlighting three pivotal elements. First, the paper sheds light on the financial aspects of the urgent fight against the COVID-19 pandemic, necessary for turning words into action. Notably, this refers to funds secured by the Multiannual Financial Frameworks 2014-2020 and 2021-2027, and the Next Generation EU recovery instrument, on the one hand, and the UN COVID-19 Response and Recovery Fund, the UN Central Emergency Response Fund and the Solidarity Response Fund, on the other hand. Second, it offers a comparative evaluation of the end results of the European and global emergency procedures in mitigating the impacts of the COVID-19 pandemic. Finally, it summarises the underlying elements of measures governing the aftermath of the ongoing crisis, i.e. those promoting a human-centred, green, sustainable, inclusive and digital approach to future life.

Mazzuoli, Valerio de Oliveira, ‘International Responsibility of States for Transnational Epidemics and Pandemics: The Case of COVID-19 from the People’s Republic of China’ (2020) 23 Revista de Direito Civil Contemporâneo 1–36
Abstract: This research addresses the possibility of state responsibility for transnational epidemics or pandemics, especially focusing on COVID-19 as a case study – a pandemic originated in the People’s Republic of China. To that end, this article analyzes this issue grounded on international health regulations together with the Constitution of the World Health Organization to be able to assess whether these rules are binding on the Member States. Furthermore, this article analyzes case laws from the International Court of Justice, and the feasibility of filing legal procedures against China before this U.N. Court for not informing the international society in due course about an impending COVID-19 pandemic.

Mazzuoli, Valerio de Oliveira, ‘Is It Possible to Hold China Responsible in the Case of COVID-19?’ (SSRN Scholarly Paper ID 3597799, 1 May 2020)
Abstract: In this article I will summarize the arguments I developed in a more complete study, already published online. Its purpose is to determine whether, in the light of public international law, there is state accountability for the thousands problems that occurred worldwide as a result of COVID-19. Thus, would the law of nations provide any mechanism to hold the Chinese government accountable if proven that it has not taken the necessary precautions to prevent the spread of the new Coronavirus? Are there international norms and case-laws addressing these issues?

Meier, Benjamin Mason, Roojin Habibi and Y Tony Yang, ‘Travel Restrictions Violate International Law’ (2020) 367(6485) Science 1436
Abstract: From China’s lockdown of the city of Wuhan to U.S. restrictions on travelers from Europe to border closures across a widening range of countries, governments are increasingly seeking to limit freedom of movement in response to the coronavirus disease 2019 (COVID-19). These travel restrictions have slowed, but not halted, the spread of the pandemic. However, the necessity and benefits of this public health response are outweighed by its violation of international law. Under the International Health Regulations (2005) (IHR), binding on all World Health Organization (WHO) member states, health measures ‘shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives.’ Given the effectiveness of community-based public health measures such as social distancing and contact tracing, the necessity of travel bans must be weighed against less restrictive alternatives, increased global divisions, and violated IHR obligations.

Menezes, Wagner and Henrique Marcos, ‘International Law Post-Pandemic’ in Gonzalo Levi Obregón Salinas (ed), Lo Multidisciplinario Del Antes y Después Del Covid-19 (Thomson Reuters, 2020)
Abstract: This paper reflects on International Law in the face of the COVID-19 (coronavirus disease 2019) viral pandemic. First, the article examines the role of International Law against the pandemic, focusing mainly on the regulatory framework available to the World Health Organization (WHO). Then, based on the examination of the stance of some States before the pandemic and the action of the WHO, the text points out evidence that the current geopolitical conjuncture still holds national sovereignty as a maxim. Further, the document explains how maintaining the primacy of sovereignty is not an adequate strategy to deal with contemporary times’ global challenges. Finally, the article highlights the relevance of assuming a systemic perspective in the practice of contemporary International Law, which, despite its flaws, should still be used as an instrument for peace and international cooperation.

Milanovic, Marko and Michael N Schmitt, ‘Cyber Attacks and Cyber (Mis)Information Operations During a Pandemic’ (2020) 11(1) Journal of National Security Law & Policy Special Covid-19 Issue 247-284
Abstract: The COVID-19 pandemic has been accompanied by reprehensible cyber operations directed against medical facilities and capabilities, as well as by a flood of misinformation. Our goal in this article is to map out the various obligations of states under general international law law and under human rights law with regard to malicious cyber and misinformation operations conducted by state and non-state actors during the pandemic. First, we consider cyber operations against health care facilities and capabilities, including public health activities operated by the government, and how such operations, when attributable to a state, can violate the sovereignty of other states, the prohibitions of intervention and the use of force, and the human rights of the affected individuals. Second, we perform a similar analysis with regard to state misinformation operations during the pandemic, especially those that directly or indirectly affect human life and health, whether such misinformation is targeting the state’s own population or those of third states. Finally, we turn to the positive obligations that states have to protect their populations from hostile cyber and misinformation operations, to the limits that human rights law imposes on efforts to combat misinformation, and to protective obligations towards third states and their populations. We argue that international law can play a robust role in addressing the COVID-19 pandemic. For the most part, the parameters of the relevant legal rules are reasonably clear. But significant areas of uncertainty remain. For instance, at least one state, wrongly in our view, rejects the existence of the general international law rule most likely to be breached by COVID-19-related cyber operations, sovereignty. Another major issue is the extraterritorial application of the human rights obligations to respect and protect the rights to life and health in the cyber context, which we examine in detail.It is difficult to find anything positive about this horrific global pandemic. However, perhaps it can help draw attention to the criticality of moving forward the international cyber law discourse among states much more quickly than has been the case to date. Many states have been cautious about proffering their interpretation of the applicable law, and to some extent rightfully so, but caution has consequences and can leave us normatively ill-prepared for the next crisis. Some states have condemned the COVID-19-related cyber operations, although seldom on the basis of international law as distinct from political norms of responsible state behavior. Hopefully, they will add legal granularity to future statements. But all states, human rights courts, human rights monitoring bodies, the academy, the private sector and NGOs must take up the challenge presented by this tragic pandemic to move the law governing cyberspace in the right direction.

Milej, Tomasz, ‘Pandemic, Solidarity and the Foundations of International Law’ (Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South (May 2020), Symposium IV: Governance, Rights, and Institutions)
Abstract: Extract from Introduction: One school of thought, it may be referred to as voluntarist orthodoxy, denounces any attempts by scholars to translate their moral insights into rules of law binding on others. Common interest is not what international law is about, as it is not even clear if it goes beyond restricting recourse to war. The international law is what the States want it to be; it is based on the voluntary acts of States that fix certain policy choices in legal norms…. International law constructed along the voluntarist orthodoxy doesn’t help in the time of pandemic. It leaves the poorer at the good will of the mighty, for it largely ignores the actual power relations between states. The inter-state deals struck ‘voluntarily’ and the policy choices thus fixed reflect the bargaining power of the States. This being the case, the international law is likely to reinforce and perpetuate inequalities, rather than being a check against the use of political power. As the post-corona crisis is likely to strike the poorest nations hardest, the bright future for some may mean dim prospects for others.

Mullen, Lucia et al, ‘An Analysis of International Health Regulations Emergency Committees and Public Health Emergency of International Concern Designations’ (2020) 5(6) BMJ Global Health Article e002502
Introduction: Nine events have been assessed for potential declaration of a Public Health Emergency of International Concern (PHEIC). A PHEIC is defined as an extraordinary event that constitutes a public health risk to other states through international spread and requires a coordinated international response. The WHO DirectorGeneral convenes Emergency Committees (ECs) to provide their advice on whether an event constitutes a PHEIC. The EC rationales have been criticised for being nontransparent and contradictory to the International Health Regulations (IHR). This first comprehensive analysis of EC rationale provides recommendations to increase clarity of EC decisions which will strengthen the IHR and WHO’s legitimacy in future outbreaks. Methods: 66 EC statements were reviewed from nine public health outbreaks of influenza A, Middle East respiratory syndrome coronavirus, polio, Ebola virus disease, Zika, yellow fever and coronavirus disease-2019. Statements were analysed to determine which of the three IHR criteria were noted as contributing towards the EC’s justification on whether to declare a PHEIC and what language was used to explain the decision. Results: Interpretation of the criteria were often vague and applied inconsistently. ECs often failed to describe and justify which criteria had been satisfied. Discussion: Guidelines must be developed for the standardised interpretation of IHR core criteria. The ECs must clearly identify and justify which criteria have contributed to their rationale for or against PHEIC declaration. Conclusion: Striving for more consistency and transparency in EC justifications would benefit future deliberations and provide more understanding and support for the process.

Nesi, Giuseppe, ‘The United Nations Principal Political Organs and the Universal Pandemic: How to Meet, Negotiate and Deliberate under “New, Extraordinary and Exceptional Circumstances”?’ (2020) Zoom-out 70 Questions of International Law 5–20
Abstract: The COVID-19 and the lockdown of the UN Headquarters in New York brought the principal political organs of the United Nations to introduce unanimously new, extraordinary and exceptional procedures for voting, negotiating and deliberating, albeit resistances and perplexities emerged. The General Assembly silence procedure proved to be successful and secret ballot elections took place. However, e-voting encountered difficulties and the silence procedure has serious political and legal flaws since States’ participation in negotiations is hampered. The Security Council seems to be the most heavily affected by the situation and is unable to take any substantive position on what is happening. The progress registered recently on Security Council working methods could be another victim of the pandemic.

Nguyen, Trang (Mae), ‘International Law as Hedging: Perspectives from Secondary Authoritarian States’ (2020) 114 American Journal of International Law (AJIL Unbound) 237–241
Abstract: Tom Ginsburg’s important article comes at a critical time. The COVID-19 crisis has spurred heated debates about political regimes vis-à-vis countries’ bureaucratic capacity. Political regime type is the core independent variable in Ginsburg’s conceptualization of authoritarian international law—a global projection of authoritarian states’ domestic politics. This essay echoes Ginsburg’s insightful observation but complicates it by shifting the focus to the less-known perspectives of secondary authoritarian countries. I use a matrix case study of two smaller states, Vietnam and Cambodia, on two prominent issues, the South China Sea (SCS) and the Belt and Road Initiative (BRI), to demonstrate small states’ effort to use international law to ‘hedge’ big powers. As the case studies show, small authoritarian states, not unlike other small states, prefer a pluralist vision of international law, even if they may at times embrace the alternative model offered by big authoritarian powers. These states thus have an important, perhaps unexpected, role to play in preserving the pluralist international legal order and mitigating the hegemonic tendencies of authoritarian international law.

Nugraha, Purna Cita, ‘The Changing Legal Infrastructure Post Covid-19 and How to Respond It’ (2020) 13(2) Indonesian Law Journal 109–121
Abstract: The COVID-19 pandemic creates political, economic, social, and cultural shifts that change the global landscape. Legal infrastructure should be prepared and well-adapted to respond to it, to further anticipate these massive shifts. The changing in international community behavior requires some adjustment and fine-tuning in the legal department. In this regard, the need of the hour is to ensure that legal infrastructure is well-adapted to the changing global landscape, and in turn, will support global efforts to stop the pandemic and prevent economic collapse. How well countries navigate through these challenges or capture opportunities and strengthen international cooperation will eventually determine success in defeating this common enemy. Thus, the global community must stand under one same norm: cooperation. This research is considered as a legal research focusing on examining existing rules and regulations, as well as a legal futuristic research in nature in trying to find which legal instrument should be developed in the future.

Nwokike, Livinus I, ‘Search for International Treaty Law on Coronavirus Vaccines/Cure and Chapter IV, IX and X of the UN Charter: Policy and Legal Appraisal’ (2021) 107 Journal of Law, Policy and Globalization 9–16
Abstract: Treaty is one of the sources of international Law. A treaty is an agreement creating binding obligations between subjects of International Law. It has other words that have similar meaning with it; such as convention, protocol, accord, arrangement, understanding, compromise, regulation, provision, pact, charter, statute, act, covenant and so on. The coronavirus disease 19 (COVID-19) is a highly transmittable and pathogenic viral infection caused by severe acute respiratory syndrome coronavirus 2 (SARS-COV-2). Coronaviruses are minute in size and contain a single stranded RNA as a nucleic material, size ranging from 26 to 32kbs in length. Recently, these viruses have hit the world caused and disrupted many countries political, social and economic programmes without specific vaccine and cure. Having this vaccine should require a law that would regulate its production, establishment, transportation and application at both municipal and international levels. Municipal law is the domestic law of a state regulating the conduct of individuals and legal entities within it while international law is the rules and principles that govern states in their relations interse. Coronavirus pandemic since existence have spread across the globe and therefore, require international treaty to back the administration of the vaccines to people. This paper seeks to examine international law to see if there is any possible treaty that made provision for pandemic like the coronavirus vaccines. It also examines Article 13 of the United Nations Charter to seeing the basis for the UN General Assembly; to find possible vaccine for this pandemic before they make humanity go into extinction. We made possible recommendations for how an offender under the likely treaty can be punished by universal jurisdiction and under the Rome Statute of International Criminal Court. Also, how China and United States of America can bury their hatchet and pass a treaty law on COVID-19 Vaccines under the United Nations.

Nyinevi, Christopher, ‘Global Pandemics and International Law: An Evaluation of State Responsibility and States’ Human Rights Obligations Arising from Covid-19’ (African Centre of Law and Ethics, Law & Ethics Web Series No 11, 15 July 2020)
Abstract: The outbreak of the Covid-19 pandemic, its damaging impacts and the corresponding measures that states have enacted implicate two important questions: (a) whether or to what extent a state bears responsibility under international law for its complicity in the outbreak of a pandemic; and (b) whether any human rights obligations or liabilities arise for states relative to the measures they enact to combat a pandemic. This paper addresses these two questions. The discussions on state responsibility are situated within the context of the Articles on State Responsibility, the Law of the World Health Organization and other rules of general international law. And drawing from the ICCPR and the African Charter on Human and People’s Rights, the second part of the discussions focus on the human rights obligations of states arising from the Covid-19 pandemic.

Oboirien, Katumi, ‘The Act of Torture and Inhumane Treatment as Human Rights Violations during COVID-19 in Nigeria’ (SSRN Scholarly Paper ID 3688363, 7 September 2020)
Abstract: In December 2017, Nigeria signed into law the Anti-Torture Act 2017. This was done in acknowledgement of her obligations under the United Nations Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment and its optional Protocol. Bearing in mind that there were existing laws which provided for torture, the Act was enacted to fill the gaps in the existing laws such as defining the term- torture and prescribing adequate punishment for the offenders. This article highlights some key provisions under the Act, laying particular emphasis on the duties of the State to protect its citizens from all forms of violations of their human rights. In this instance, we assert that the right to freedom from torture, cruel, inhuman and degrading treatment is a non-derogable right and law enforcement officers are duty-bound to respect this right in whatever situation, even in the face of the COVID-19 Pandemic. Also portrayed in this article are some situational analysis of torture victims as well as court decisions on the matter. We conclude by restating some of the acts performed by law enforcement officers which constitute torture and proffer some recommendations.

Okediya, Peter, ‘China Coronavirus Bioweapon Conspiracy Theory: The Application of International Humanitarian Law by States’ (SSRN Scholarly Paper ID 3614166, 18 May 2020)
Abstract: Rumors are circulating about China’s deliberate plan to make the Coronavirus a bioweapon. These rumors cannot be discountenanced because the science and technologies designed for benign purposes can also be misused. The response of IHL to an unproven rumor is mainly conducting investigations to ascertain the validity of the rumors. However, if it later turned out China deliberately contemplated the Coronavirus to be a biological weapon as an attack against any country, the response of IHL lies in various statutory instruments and retaliatory actions from other States. More options available to indivduals and States are explained in this publication.

Okerman, Justin and Barbara Von Tigerstrom, ‘Any Port in a Pandemic: International Law and Restrictions on Maritime Traffic during the COVID-19 Pandemic’ (2021) Canadian Yearbook of International Law/Annuaire Canadien de Droit International (advance article, published 11 May 2021)
Abstract: The current international framework that purports to regulate the spread of communicable disease in the context of maritime traffic is a fragmented, internally inconsistent, and inadequately enforced patchwork of treaties (including the International Health Regulations (2005)) and customary international law. The COVID-19 pandemic has tested the current framework and revealed it to be inadequate to deal with a major global health emergency. States have imposed or failed to impose varying control measures, the effects of which have been witnessed on board passenger vessels around the world. The cruise industry, in particular, has a significant global economic impact; therefore, appropriate, enforceable international regulation is necessary to ensure the adequate control of future communicable disease outbreaks.

Omelchuk, Oleh M, Inna V Shevchuk and Anna V Danilova, ‘The Impact of Covid-19 Pandemic on Improving the Legal Regulation Of Protection of Human Right to Health’ (2020) 73(12 cz 2) Wiadomosci Lekarskie 2768–2772
Objective: Theoretical and methodological substantiation of the impact of COVID-19 on the implementation of state policy on the protection of human right to health in terms of improving the legal framework in the field of demographic security.
Materials and methods: The main research materials are the norms of the International Covenant on Economic, Social and Cultural Rights, the Conventions for the Protection of Human Rights and Fundamental Freedoms and the legal framework of the countries that have adopted temporary quarantine measures. This research is based on empiricaland analytical data from WHO, Bloomberg’s financial information provider. During the research, the following methods have been used: statistical, system-structural analysis, content-analysis, comparison, grouping and forecasting.
Conclusions: Under the conditions of pandemic, attention should be paid to strengthening both administrative and criminal liability for violating quarantine, which will serve as a prerequisite for improving the legal mechanism of combating threats to the country’s demographic security. The protection of the right to health requires the state to create conditions to prevent the risk of occupational diseases among health care workers and others involved in the response to COVID-19.

Omodele, Adeyemi, ‘The Dichotomy between International Relations and International Law in the Face of the Global COVID-19 Pandemic’ (2020) 11(2) Nnamdi Azikiwe University Journal of International Law and Jurisprudence 61–72
Abstract: In addressing global issues, international relations and international law have always worked together since time immemorial. The nexus between both fields has however not flowed seamlessly or naturally. The nexus seems to be changing and needs a re-conceptualization within the global system especially with the nature of the threat posed by new pandemics such as the Corona Virus otherwise called the COVID - 19. With the emergence of COVID - 19 pandemic, strains are gradually increasing between international relations and international law such that despite consistent scholarly attention on the fields, their points of connection, both seems not to have engaged in a coherent international intercourse and coordination especially as regards to the efforts aimed at effective identification, control and prevention of the disease. This is surprising, given the marginal place of international relations and international law in global epidemiology. This paper is based on qualitative research. The theory adopted was collective security theory in international relations (liberalism). Collective security is a system by which states have attempted to prevent or stop wars through international treaties and conventions. International relations, international law and COVID - 19 were discussed on separate headings given details to each. It provides an outline of the convergence and dichotomy between both fields in the control of the COVID - 19 pandemic and explicated the ways we can build on the strengths of both fields and overcome inherent contextual dissimilarities with a view to having a global peaceful medical environment. The concluding part of the paper dealt with how to jointly curtail the pandemic globally.

O’Rourke, Catherine, ‘International Law, COVID-19 and Feminist Engagement with the United Nations Security Council: The End of the Affair?’ (2020) 28(3) Feminist Legal Studies 321–328
Abstract: The gendered implications of COVID-19, in particular in terms of gender-based violence and the gendered division of care work, have secured some prominence, and ignited discussion about prospects for a ‘feminist recovery’. In international law terms, feminist calls for a response to the pandemic have privileged the United Nations Security Council (UNSC), conditioned—I argue—by two decades of the pursuit of the Women, Peace and Security (WPS) agenda through the UNSC. The deficiencies of the UNSC response, as characterised by the Resolution 2532 adopted to address the pandemic, manifest yet again the identified deficiencies of the WPS agenda at the UNSC, namely fragmentation, securitisation, efficacy and legitimacy. What Resolution 2532 does bring, however, is new clarity about the underlying reasons for the repeated and enduring nature of these deficiencies at the UNSC. Specifically, the COVID-19 ‘crisis’ is powerful in exposing the deficiencies of the crisis framework in which the UNSC operates. My reflections draw on insights from Hilary Charlesworth’s seminal contribution ‘International Law: A Discipline of Crisis’ to argue that, instead of conceding the ‘crisis’ framework to the pandemic by prioritising the UNSC, a ‘feminist recovery’ must instead follow Charlesworth’s exhortation to refocus on an international law of the everyday.

Paddeu, Federica and Michael Waibel, ‘The Final Act: Exploring the End of Pandemics’ (2020) 114(4) American Journal of International Law 698–707 (pre-published version of paper published as University of Cambridge Faculty of Law Research Paper 27/2020)
Abstract: This Essay considers how adjudicators could determine the end of the SARS-Cov-2 pandemic. Considerable work examines the beginning and existence of pandemics and emergencies. By contrast, when either of these two phenomena end remains underexplored—creating legal uncertainty. This Essay reviews how pandemics as biological and social events end, considers how international bodies have approached the end of emergencies, and assesses what this might mean for adjudicators deciding on the end of the SARS-Cov-2 pandemic and related public health emergency.

Paparinskis, Martins, ‘The Once and Future Law of State Responsibility’ (2020) 114(4) American Journal of International Law 618–626
Abstract: The current (once) international law of state responsibility is shaped by the International Law Commission’s Articles on responsibility of States for internationally wrongful acts, generally endorsed in state and judicial practice as consonant with custom. This Essay makes the case that the global pandemic and associated practice may affect foundational elements of the (future) law of state responsibility. It outlines the contours of systemic grain of possible developments by reference to the tension between bilateralism and community interests in international law.

Paparinskis, Martins, ‘Covid-19 Claims and the Law of International Responsibility’ (2020) 11(2) Journal of International Humanitarian Legal Studies 311–330
Abstract: This paper considers the role that the law of international responsibility, both State responsibility and responsibility of international organizations, plays in claims and disputes about covid-19. It proceeds by examining in turn the rubrics of the internationally wrongful act, content of responsibility, and implementation of responsibility. On most points, blackletter law is perfectly capable of answering the questions raised by claims related to covid-19. But evolutionary potential inherent in the normal international legal process should also be recognised, whether it manifests itself by further strengthening current rules, elaborating vague rules by application, filling gaps in current law by generating new practice or even, exceptionally, revisiting rules currently in force.

Patterson, Amy S and Emmanuel Balogun, ‘African Responses to COVID-19: The Reckoning of Agency?’ (2021) 64(1) African Studies Review 144–167
Abstract: Although the COVID-19 pandemic had claimed over one million lives globally by late 2020, Africa had avoided a massive outbreak. Patterson and Balogun analyze pandemic responses by the Africa Centres for Disease Control and Prevention and various states collaborating with civil society. They argue that responses display forms of agency rooted in contextually relevant expertise, pan-African solidarity, and lessons learned about health messaging and community mobilization from previous health crises. Yet collaboration has not always been harmonious, as actors have adopted various approaches in their interactions with global health institutions and civil society partnerships, and they have actively debated the use of traditional medicine as a COVID-19 treatment.

Permana, Vensky Ghaniiyyu Putri, ‘The Settlement of Anti-Asian America Violence During the Covid-19 through the United Nations in the Perspective of International Law’ (April 2021) (no publication information)
Abstract: Covid-19 began to be indicated in December 2019 in Wuhan City, Hubei Province, China and has spread throughout the world. The serious consequences of Covid-19 have caused losses in all countries, including the United States. It provides negative views, hate crimes, discrimination, and racism for Asian or Asian people living in America who violate human rights. The paper aims to analyze the role of the United Nations as an international organization that aims to maintain peace and security throughout the country against the Anti-Asian American Violence that violates Human Rights. The method used is normative legal research method with the main source of data collection procedures is legal materials that contain normative law. The results of the research show that actions taken by citizens of the United States have violated legal provisions including the 1948 Universal Declaration of Human Rights (UDHR). The United States government has also failed to fulfill its responsibility to protect the human rights of its citizens. If the state is unable, the role of the United Nations is needed to overcome the problem by promoting the protection of human rights by Asian-Americans by assisting, monitoring, investigating, and reporting publicly to the Security Council and Media. In addition, the United Nations can assist and provide legal protection to the Asian-American communities and support the movement against racism against Asian Americans and Asians in the US.

Perry, Ronen, ‘Who Should Be Liable for the COVID-19 Pandemic?’ (2021) 58(2) Harvard Journal on Legislation 253–312

Abstract: The Article systematically and critically evaluates the potential liability of various ‘suspects’ for the physical, emotional, and economic losses arising from the COVID-19 pandemic: the country-of-origin (the People’s Republic of China), international organizations (particularly the World Health Organization), federal, state, and local governments and officers, businesses, and healthcare providers. It concludes that existing legal frameworks fail to provide an appropriate solution for victims, primarily because each of the potential defendants can easily evade liability. The Article then proposes a new hybrid (international-domestic) regime, inspired by the international framework for the compensation of victims of nuclear incidents and by the September 11th Victim Compensation Fund.

Peters, Anne, ‘COVID-19 As a Catalyst for the (Re-)Constitutionalisation of International Law: One Health ─ One Welfare’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–44, November 2020)
Abstract: The paper recalls that an infectious disease such as COVID-19 hits with disproportionate negative effects the poorer populations and thus exacerbates the wealth and income gap inside and across states. As previous diseases, the pandemic is both a driver and an outcome of international relations. Against the background that the foundations of international law have been laid by infecting the ‘others’, and that notably zoonoses have stimulated institution-building on the international plane, it is not out of the question that the COVID-19 pandemic will trigger developments in international law. The normative proposal is to modify and operationalise the so-far underdeveloped One Health approach, informed by the international constitutional principle of solidarity.

Phillips, Roger Lu and Layla Abi-Falah, ‘Criminal Responsibility for the COVID-19 Pandemic in Syria’ (SSRN Scholarly Paper No ID 3664268, 30 July 2020)
Abstract: Since the beginning of the Syrian conflict in 2011, the Syrian government has bombed healthcare facilities, attacked healthcare workers, and diverted humanitarian medical aid. These attacks not only decimated hospitals and led to numerous fatalities, but also crippled Syrian healthcare capacity leaving it entirely unprepared to address the COVID-19 pandemic. Initially denying that COVID-19 had affected the country, the Syrian government has since acknowledged its existence and accepted international humanitarian aid. However, it has renewed its approach to punish and suppress opponents by diverting medical aid away from parts of the country at highest risk of infection, namely current and former opposition-held areas such as Idlib, impeding healthcare’s ability to respond to COVID-19 in such areas. Health experts now estimate that an unmitigated outbreak in Idlib, the last redoubt of the opposition, could result in the deaths of up to 100,000 persons due to this illness – a situation that would not have arisen but for the Syrian government’s campaign of violence against healthcare. It is one of the foundational principles of international humanitarian law that the intentional targeting of health facilities constitutes a war crime. The Syrian Government’s attacks on such facilities have been well-documented and condemned in a series of reports issued by UN entities, journalists and non-governmental organizations. But the death and suffering caused by these attacks is not fully encompassed by reference to direct casualties alone. Thousands of Syrians have been deprived of routine medical treatment for acute illnesses as well as communicable diseases as a result of a deliberate strategy of eradicating access to healthcare. This article examines whether individual criminal responsibility may obtain for the Syrian government’s campaign of violence against healthcare which has led to the deaths and suffering through injuries and illness including due to COVID-19. By examining the concept of dolus eventualis, it concludes that the Syrian government’s acts and omissions in furtherance of a policy to attack healthcare as an institution constitutes murder and extermination as crimes against humanity and war crimes. It also concludes that by focusing the ire of the military on specific groups of civilians and intentionally causing their suffering, government and military officials may be guilty of the crimes against humanity of persecution, other inhumane acts, and torture.

Poole, Danielle N et al, ‘Responding to the COVID-19 Pandemic in Complex Humanitarian Crises’ (2020) 19(1) International Journal for Equity in Health Article 41
Abstract: Over 168 million people across 50 countries are estimated to need humanitarian assistance in 2020. Response to epidemics in complex humanitarian crises—such as the recent cholera epidemic in Yemen and the Ebola epidemic in the Democratic Republic of Congo—is a global health challenge of increasing scale. The thousands of Yemeni and Congolese who have died in these years-long epidemics demonstrate the difficulty of combatting even well-known pathogens in humanitarian settings. The novel severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2) may represent a still greater threat to those in complex humanitarian crises, which lack the infrastructure, support, and health systems to mount a comprehensive response. Poor governance, public distrust, and political violence may further undermine interventions in these settings.

Poorhashemi, Abbas, ‘Can China Be Sued under International Law for COVID-19?Jurist (Blog Post, 21 May 2020)
Abstract: Under the immense human and economic loss caused by the COVID-19 pandemic, some countries have mentioned that they are willing to file lawsuits against China. Do they have any basis for filing a lawsuit? In the current state of international law, is the claimant State required to prove negligence or breach of a international legal duty to receive any compensation from China?

Poorhashemi, Abbas, ‘Is COVID-19 An Opportunity to Create a New United Nations? A Lesson from World War IIThe Law Gazette (25 August 2020)
Abstract: One of the direct impacts of the spread of the coronavirus COVID-19 is challenging international organizations, specifically the United Nations and its related institutions. The emergence and outbreak of the coronavirus COVID-19 put in doubt the effectiveness and efficiency of world governance during the global crisis. The pandemic has shown the ineffectiveness of international law and the inefficiency of international institutions to solve global crises. Besides, numerous regulations and treatises have been accepted, signed, and ratified by the States regarding global health issues; they remain, however, inapplicable. Therefore, the pandemic has opened a window of opportunity to the modern era of globalization based on the new rules and structures. The world is experiencing an unprecedented crisis after World War II. The COVID-19 pandemic is not only a health crisis, but it is also a humanitarian, socio-economic, political, and development crisis that threatens entire humanity. The response to this crisis requires global efforts to take appropriate measures for reducing harmful effects on the security, health care, food, water, and sanitation of all human life around the world. The actions taken in this situation should guarantee health care to everyone and protect human dignity. They also should be based on the pathway that will restore economic, development and peace in a sustainable approach. In such a situation, the United Nations has failed to manage and lead the global crisis. For instance, regarding the right to health as an element of human rights, the UN has failed to implement this right globally. International human rights law is generally based on inalienable, universal, interdependent, and indivisible rights. It imposes obligations on the States, especially in times of crisis. Human rights are applying to everyone without any discrimination. Besides, the States should adopt a policy to ensure that all levels of government, including executive authority, apply the strategic, legal, regulatory, emergency, and public health measures that they are adopting to manage the COVID-19 pandemic on a human rights-based approach. International organizations, specifically the United Nations and the Security Council, had a crucial role to play for reinforcing the rules of international law or universal values such as the rule of law and respect to human rights. However, the UN and its specialized agencies are unable to deal with global problems.

Qin, Qian and Tianyu Luo, ‘Pandemic Response and International Law: The Case of COVID-19’ (2020) 3(1) Traditional Medicine and Modern Medicine 1–6
Abstract: The coronavirus pandemic is currently raging throughout the world. The ensuing crisis has acquired a multidimensional nature, affecting all levels of society, including international health legal order. For international health law, the World Health Organization (WHO) is the international institution with a core mandate in issues of global health. Moreover, the International Health Regulations (IHR) is the main legally binding instrument laying down rules for the cross-border spread of contagious diseases. Against this backdrop, this paper evaluates the issues and disputes under the current regimes of international health law. The paper then offers some thoughts by way of answers to the research questions.

Quintana, Francisco-José and Justina Uriburu, ‘Modest International Law: COVID-19, International Legal Responses, and Depoliticization’ (2020) 114(4) American Journal of International Law 687–697
Abstract: In this Essay, we analyze two sets of international legal responses to the COVID-19 pandemic: the academic discussion on state responsibility; and the deployment of international law as a tool for resistance. We argue that both approaches made significant contributions but concealed the role of the discipline in the production of the conditions that led to the pandemic and its unequal impact. These interventions reflect a ‘modest international law’; an understanding of the discipline that hinders change and is ethically weak. We contend that repoliticization can help reclaim international law’s ambition and responsibility.

Rashkow, Bruce, ‘U.N. Peacekeeping in a Time of Pandemic’ (2020) 11(1) Journal of National Security Law and Policy 285–289
Abstract: In addition to the initiative of the UN Secretary General to pause hostilities around the world --- and the dangers that such hostilities inherently raise for U.N. peacekeeping operations --- COVID-19 is having a significant impact on how those operations are being conducted. The pandemic has presented new challenges for U.N. peacekeeping forces to keep themselves safe from the coronavirus, while also seeking to facilitate peace in troubled areas. Working with the WHO and others, the United Nations has developed extensive guidelines for dealing with the pandemic not only in its headquarters in New York, Geneva, Vienna, and Nairobi, but throughout the world, including its 13 current peacekeeping missions. These missions currently involve 95,000 military and police personnel from some 34 countries wearing Blue Helmets, mostly in Africa.

Richardson, Eric and Colleen Devine, ‘Emergencies End Eventually: How to Better Analyze Human Rights Restrictions Sparked by the COVID-19 Pandemic Under the International Covenant on Civil and Political Rights’ (2020) 42(1) Michigan Journal of International Law 105–176 REPLACEMENT ENTRY
Abstract: In the wake of the COVID-19 pandemic, states have been quick to adopt emergency measures aimed at curbing the spread of the virus. However, poorly constructed restrictions threaten to undermine hard won human rights protections and may in fact erode important elements of international human rights law as a result of overreaching implementation or lack of rigorous analysis in how the restrictions are put, and kept, in place. This article analyzes the International Convent on Civil and Political Rights (ICCPR) standards which apply to emergency regulation in times of public health crisis and the tangled morass of legal tests which have been used to balance human rights and emergency restrictions. We argue that in the current pandemic, human rights are best protected when states act under the Article 4 derogation mechanism to put emergency measures in place because it provides opportunities for oversight ensuring the end of emergency restrictions after the crisis subsides and provides certainty as to how states are justifying their emergency measures under the treaty regime. Given that so few states have provided notice of derogation under the ICCPR, this Article also considers what a rigorous analysis would look like when restricting freedom of movement, privacy, and freedom of assembly using the limitation language found in each article, suggesting best practices for better balancing COVID-19-related emergency measures with human rights.

Rourke, Michelle et al, ‘Policy Opportunities to Enhance Sharing for Pandemic Research’ (2020) 368(6492) Science 716–718
Extract from Introduction: COVID-19 reveals gaps in international law that can inhibit timely sharing of information, samples, and sequences…. We examine the sharing of public health information, biological samples, and GSD in the still early days of the COVID-19 pandemic, identify barriers to sharing under the current international legal system, and propose legal and policy reforms needed to enhance international scientific cooperation.

Sadat, Leila Nadya, ‘Pandemic Nationalism, Covid-19, and International Law’ (2021) 20(3) Washington University Global Studies Law Review 561–582 [pre-published version on SSRN]
Abstract: This Essay explores possible reforms to the World Health Organization (WHO) considering its response to the COVID-19 pandemic. It also suggests using existing mechanisms to enforce the WHO Constitution and the International Health Regulations (IHR). The Essay focuses on three aspects of global health governance: (1) how nationalism of powerful States renders pandemic control difficult given the ‘weakest-link public goods’ character of global health emergencies; (2) how legal and practice reforms might nonetheless strengthen and fortify the WHO’s response; and (3) how existing provisions of the WHO Constitution and the IHR might be enforced through the dispute resolution clauses in these instruments using principles of State Responsibility. Though successive reforms have been proposed to the WHO in response to previous health crises, growing nationalism in the United States and China has impeded their implementation. International law and existing provisions of the WHO Constitution and the IHR offer some relief, but face obstacles in their effective enforcement. Paradoxically, meaningful reform may be both desirable and yet difficult to achieve in the current geopolitical context, even with the election of a committed multilateralist U.S. President. Until that changes, States will need to use existing legal frameworks creatively, including formal dispute settlement provisions as well as informal pathways to invigorate treaty provisions and hold each other to account. Civil society organizations, including networks of health professionals and scientists, will also need to continue to press international organizations and national systems to adhere to global norms. This Essay is part of a comprehensive project studying the global response to COVID-19.

Sander, Barrie and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (March-April 2020)
Summary: Each contribution in this symposium appraises the impact of COVID-19 from different perspectives of international law. There are over 30 contributions, some of which feature as part of complementary clusters of analysis around a given topic area. Many of the authors in this symposium question whether international law, or its failure, is complicit in the COVID-19 crisis. Others ask how international law can or should respond to the pandemic.
Note: Some of the contributions are listed here. Others are listed under other topic headings in this bibliography. Link to PDF of entire Symposium

Sander, Barrie and Nicholas Tsagourias, ‘The Covid-19 Infodemic and Online Platforms as Intermediary Fiduciaries under International Law’ (2020) 11(2) Journal of International Humanitarian Legal Studies 331–347
Abstract: Reflecting on the covid-19 infodemic, this paper identifies different dimensions of information disorder associated with the pandemic, examines how online platform governance has been evolving in response, and reflects on what the crisis reveals about the relationship between online platforms, international law, and the prospect of regulation. The paper argues that online platforms are intermediary fiduciaries of the international public good, and for this reason regulation should be informed by relevant standards that apply to fiduciary relationships.

Sasil, Pascal and Samruthi Karthikeyan, ‘International Legal Action Against The People’s Republic of China Over COVID-19 Woes: Prospects, Probabilities and Possibilities’ (SSRN Scholarly Paper ID 3707983, 15 March 2020)
Abstract: COVID-19, the virus that incubated in Wuhan is now all over the face of the Earth, threatening the existence of mankind as a whole. It is on a rampage, ravishing so-called global superpowers too. Ever since the day the virus was discovered, there has been an air of uncertainty surrounding the same. Various controversial claims and assumptions have been made regarding the source of the virus and the possibility of it being a potential bioweapon. With most of these claims pointing towards the Wuhan Institute of Virology and thereby shifting the blame on China, these will remain as mere claims until proven otherwise! However, one concrete criticism made by the global community is regarding China’s breach of responsibility to the world nations, mandated by various international obligations under the World Health Organization and the United Nations. As the famous saying goes, ‘information is wealth’. Timely information during a pandemic is nothing but gold dust. This information sharing is precisely what China has failed to do in accordance with various legislations such as The International Health Regulations,2005. Through its acts of disinformation and misinformation, China seems to have made a mockery of the COVID-19 outbreak. Since Day One, not only has it made a gross violation of various existent International Legislations and Regulations but has gone past the basic humanitarian concerns expected out of a civilized international community. The repercussions of the same are unprecedented both in terms of the death toll and monetary losses. The international arena is seeing a never before outrage from all quarters with the tagline, Beware! The lawyers are coming becoming a worldwide trend. With many nations expressing their displeasure and hinting at the possibility of legal action against China, the legal aspect of the debate comes in. The authors will put forward the timeline of the COVID-19 pandemic and highlight the misdemeanors of China by quoting various incidents that stand in violation of various International legislations such as the International Health Regulations of 2005 and Responsibility of States for Internationally Wrongful Acts of 2001. Moving forward, the authors would analyze the various different courses of legal options available, from Dispute Resolution Mechanisms to the International Court of Justice. Furthermore, the authors aim to put forward the complications in enforcing legal action against China by citing various international precedents. The defense on part of the Chinse Republic and the chances of the international community forcing China into reparations through non-judicial means will also be examined. At length, the authors, to the best of their abilities, would conclude on the three P’s, the possibility, probability, and the prospects of successful legal action against The People’s Republic of China for its COVID-19 misdemeanors and subsequent international woes.

Seitz, Claudia, ‘Genetic Material and Sequence Data to Protect Global Health in the Light of Pandemic Outbreaks : Mapping the Legal Landscape under European and International Law’ (2020) 27(3) European Journal of Health Law 232–241
Abstract: The current pandemic outbreak of corona virus SARS-CoV-2 shows the need for comprehensive European cooperation in drug development and the importance of genetic material and sequence data in research concerning this unknown disease. As corona virus SARS-CoV-2 is spreading across Europe and worldwide, national authorities and the European Union (EU) institutions do their utmost to address the pandemic and accelerate innovation to protect global health. In order to be prepared and to be able to respond immediately to serious epidemic and pandemic diseases, the EU has already adopted the Decision No (EU) 1082/2013 on serious cross-border threats to health. The World Health Organization (WHO) has established a global system to collect genetic material and information to protect a global influenza pandemic outbreak. The article describes the current legal landscape under EU and international law.

Shi, Xinxiang and Xiaoou Zheng, ‘The Obligations of China and the Role of International Law in the Context of the Coronavirus Pandemic’ (2021) 14(1) Journal of East Asia and International Law (JEAIL) 101–114
Abstract: This short article examines whether China has incurred responsibility for violating a general due diligence obligation in customary international law or specific obligations under the WHO’s International Health Regulations and the WHO Constitution in a context of Covid-19. It is submitted that due diligence is merely a notion to describe a primary obligation, or a standard by which a particular primary obligation is assessed. It cannot serve as the basis for holding a State responsible. Regarding the WHO regime, actions taken by China after December 2019 neatly fit into the staggered requirements of Articles 6 and 7 of the International Health Regulations, which do not set out clear standards for the evaluation of a health emergency. On a more general level, we reflect upon the role of international law in global pandemic control and caution against the politicization of international health law.

Shlomo Agon, Sivan, ‘Farewell to the F-Word? Fragmentation of International Law in Times of the COVID-19 Pandemic’ (2021) University of Toronto Law Journal (advance article, published online 9 September 2021)
Abstract: The proliferation of international legal regimes, norms, and institutions in the post-Cold War era, known as the ‘fragmentation’ of international law, has sparked extensive debate among jurists. This debate has evolved as a dialectical process, seeing legal scholarship shifting from grave concern about fragmentation’s potentially negative impacts on the international legal order to a more optimistic view of the phenomenon, with recent literature suggesting that the tools needed to contain fragmentation’s ill-effects are today all at hand, thus arguing that the time has come ‘to bid farewell to the f-word.’ Drawing on the COVID-19 crisis as a test case and considering the unresolved problems in existing fragmentation literature that this crisis brings to the fore, this article asks whether such calls have perhaps been premature. Existing works on fragmentation, the article submits, including those bidding farewell to the f-word, have mainly focused on the problems of conflicts between international norms or international institutions, especially conflicts between international courts over competing jurisdictions and interpretations of law. But, as the COVID-19 case – and, particularly, the deficient cooperation marked between the numerous international organizations reacting to the crisis – shows, the fragmentation of the international legal order does not only give rise to the potential consequences of conflicts of norms and clashes between international courts. Fragmentation also gives rise to pressing challenges of coordination when a proactive and cohesive international response is required to address global problems like COVID-19, which cut across multiple international organizations playing critical roles in the creation, administration, and application of international law. By foregrounding cooperation between international organizations as a vital-yet-deficient form of governance under conditions of fragmentation, the article argues, the COVID-19 crisis not only denotes that the time is not yet ripe to bid farewell to the f-word. It further points to the need to expand the fragmentation debate, going beyond its conflict- and court-centred focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.

Shulga, Ievgenii et al, ‘International Legal Regulation and Supranational Interaction in Counteracting the COVID-19 Pandemic: Challenges and Proposals’ (2021) 1(1) Journal of Policy & Governance 54–62
Abstract: The purpose of the article is to study problems of international legal regulation and supranational cooperation in combating the COVID-19 pandemic. The institutional and international legal mechanism of counteraction to the spread of the pandemic is analyzed. The problem moments of realization of provisions of the main international acts in the area of counteraction to the Coronavirus disease by the national governments are marked out. The methodological basis for the article is general and special methods and techniques of scientific knowledge, in particular: formal-logical, Aristotelian method, method of documentary, system-structured method, formal and legal method, forecasting method, method of generalization. The key problems of international legal counteraction to the pandemic spread are as follows: advisory (not obligatory) character of the majority of international legal acts related to the fight against COVID-19; disinterest of the states in timely informing WHO about the outbreaks of infectious diseases; arbitrary interpretation of the international acts by national governments; human rights restrictions on the movement imposed by the states; lack of a clear funding mechanism to build the necessary global and national infrastructure to ensure commitment in accordance with the International Health Regulations.

Silke, Andrew, ‘COVID-19 and Terrorism’ (2020) 30(6) Intersec: The Journal of International Security 8–10
Abstract: As the international community continues to grabble with the COVID-19 pandemic it is clear that its economic and social impact will be deep and long lasting. Evidence suggests it is already having an impact on terrorism trends across the globe and it is worth considering in more detail its potential impact threats in the medium and long-term.

Silva, Jameson Martins da and Deisy de Freitas Lima Ventura, ‘Between Science and Populism: The Brazilian Response to COVID-19 from the Perspective of the Legal Determinants of Global Health’ (2020) 17(2) Revista de Direito Internacional 67–83
Abstract: A populist government has been held accountable for the 120 thousand preventable deaths in Brazil so far, due to the Covid-19 pandemic. Domestic law has played a major role in the pandemic response, both as an opposing force and as an instrument of populism and denialism. The international legal sphere has, for its turn, provided an alternative of resistance against the latter. This piece assesses the Brazilian response in the light of the Legal Determinants of Health framework, put forward by The Lancet-O’Neill Institute of Georgetown University Commission on Global Health and Law. The two first sections unfold the origins and contents of the legal determinants of health. The third offers a brief account of the Brazilian experience during the pandemic, stressing the far-right populist agenda of the federal government. The last section explores the legal aspects of the response, in its domestic and international dimensions. Lastly, we pinpoint some preliminary conclusions we may draw from the pandemic experience thus far, in particular by the interplay of populism and global health law.

Smith, Robert and Mark Perry, ‘Fake News and the Convention on Cybercrime’ (2021) 7(3) Athens Journal of Law 335-357
Abstract: The COVID-19 pandemic and the recent term of the United States President, Donald Trump, brought the term "fake news" to the attention of the broader community. Some jurisdictions have developed anti-fake news legislation, whilst others have used existing cybercrime legislation. A significant deficiency is the lack of a clear definition of fake news. Just because a person calls something "fake news" does not mean that it is indeed false. Especially during pandemics, the primary aim should be to have misinformation and disinformation removed quickly from the web rather than prosecute offenders. The most widely accepted international anti-cybercrime treaty is the Convention on Cybercrime developed by the Council of Europe, which is silent on fake news, the propagation of which may be a cybercrime. There is an Additional Protocol that deals with hate speech, which the authors consider to be a subset of fake news. Using examples from Southeast Asia, the paper develops a comprehensive definition of what constitutes fake news. It ensures that it covers the various flavours of fake news that have been adopted in various jurisdictions. Hate speech can be considered a subset of fake news and is defined as the publication or distribution of fake news with the intention to incite hatred or violence against ethnic, religious, political, and other groups in society. The paper proposes some offences, including those that should be applied to platform service providers. The recommendations could be easily adapted for inclusion in the Convention on Cybercrime or other regional conventions. Such an approach is desirable as cybercrime, including propagating fake news, is not a respecter of national borders, and has widespread deleterious effects.

Spedaletti, Adriano, ‘The Subjects of International Law and Covid-19’ in Gian Luca Gardini (ed), The World Before and After COVID-19: Intellectual Reflections on Politics, Diplomacy and International Relations (European Institute of International Relations, 2020) 44–47

Statement on the Covid-19 Pandemic and Economic, Social and Cultural Rights: Committee on Economic, Social and Cultural Rights’ (2020) 9(1) International Human Rights Law Review 135–142
Introduction: The Covid-19 pandemic is threatening to overwhelm public health care systems, and is having devastating impacts across the world on all spheres of life – the economy, social security, education, and food production. Tens of thousands of lives have already been lost, including those of doctors and nurses providing frontline medical treatment. Jobs have been lost and livelihoods imperilled due to restrictions to curb the transmission of the virus such as ‘lockdowns’. Schools are closed in many affected countries, and people cannot gather for significant cultural and community events such as religious services, weddings or funerals. At the commencement of this statement, the Committee extends its sympathy to all victims of the pandemic and their families as well as the broader communities of which they are part.

Stephan, Paul B, ‘Sovereignty and the World Economy’ (Virginia Public Law and Legal Theory Research Paper No 2020–57, 20 July 2020)
Abstract: Even before COVID19 struck, we were going through a remarkable moment of political, economic, and social instability. We see disruption of many international institutions, both formal and informal, and a sea change in national politics. The United States tries to renegotiate the terms of its engagement with the rest of the world; the European Union’s structural flaws become manifest, with Brexit only the first crack; the domestic politics of many great states turn towards populism and the obliteration of historically significant political parties; authoritarianism seems on the rise, and liberal democracy waning, in those parts of the world that had seemed transformed in or around the annus mirabilis of 1989; and the dark side of technological innovation manifests itself in the privatization of organized violence, unsustainable inequality, and the erasure of privacy. Then COVID-19 came, with its dire if still not fully realized consequences. The liberal democratic nation-state, supposedly the culmination of a Hegelian process that ended history, is listing, taking on water, and perhaps doomed.What does this have to do with sovereignty? The present moment invites yet another reconsideration of the liberal democratic nation-state as the nexus of sovereignty. Can we talk about sovereignty without committing to a political or historical theory about particular kinds of social organization? If the liberal democratic nation-state is on the way out, what becomes of sovereignty?This article argues that we cannot begin to make sense of the present series of crises in contemporary domestic and international politics without accepting the flexibility and elasticity of sovereignty. Localities, substates, nation-states, and the international order all may exercise some form of sovereignty. Sovereignty is a relationship, not a fundamental concept on which to build a general theory of political economy.My argument is fairly straightforward. First, I lay out the conceptual argument for divorcing the concept of sovereignty from the modern idea of a nation-state. Second, I posit, without spending a lot of time trying to prove, that the most significant force driving economic, political, and social change over the past fifty years is the rise of the knowledge economy. The immediate crisis associated with COVID-19 seems to have amplified this process, although we won’t know for sure for some time. Third, I sketch out the effects of that rise on different sites of sovereignty, local, substate, national, and international. These effects, I argue, create both synergies and antagonisms that play out differently at each level. Finally, I speculate about different scenarios that might result from the inherent tensions within and among these sites of sovereignty.

Sulkowski, Adam J, ‘Indigenous Shared Governance, International Law, and Preserving Rainforest in a Pandemic’ (SSRN Scholarly Paper No ID 3684021, 31 August 2020)
Abstract: In a rarely visited corner of the Amazon biome is an entity whose predicament is both unique and relatable, and whose fate is tied to that of local Indigenous peoples, as well as the climate of the world: the Iwokrama International Centre for Rainforest Conservation and Development in Guyana. This case answers calls for more transdisciplinary efforts in scholarship and teaching, and is intended to both serve as a basis for conversations with students as well as a springboard for further research.

Taylor, Allyn L et al, ‘Solidarity in the Wake of COVID-19: Reimagining the International Health Regulations’ (2020) 396(10244) The Lancet 82–83
Introduction: Amid frenzied national responses to COVID-19, the world could soon reach a critical juncture to revisit and strengthen the International Health Regulations (IHR), the multilateral instrument that governs how 196 states and WHO collectively address the global spread of disease. In many countries, IHR obligations that are vital to an effective pandemic response remain unfulfilled, and the instrument has been largely side-lined in the COVID-19 pandemic, the largest global health crisis in a century. It is time to reimagine the IHR as an instrument that will compel global solidarity and national action against the threat of emerging and re-emerging pathogens. We call on state parties to reform the IHR to improve supervision, international assistance, dispute resolution, and overall textual clarity.

Temprosa, Francis Tom and Darwin Simpelo, ‘Rights under Lockdown: Not Releasing Vulnerable Prisoners in the Time of a Pandemic Is a Cruel, Inhuman or Degrading Treatment or PunishmentMichigan Journal of International Law Online (forthcoming)
Abstract: This argues that the non-release of vulnerable prisoners in this time of a pandemic constitutes a cruel, inhuman or degrading treatment of punishment, a grave violation of the Torture Convention in international law. With the quick and far-reaching spread of the novel coronavirus or COVID-19, prisoners are among the most vulnerable people in the world. Prisoners face the real danger of COVID-19 while being held in environments that make basic health measures of personal protection and distancing impossible. While the situations of prisons, jails, and other detention centers in each country differs, there could be instances when the danger of being afflicted with the disease is grave and imminent in all carceral States.

Teo, Tessa Sze-Myn, ‘Pathogenic Viruses as a Global Commons: The Shared Responsibility of Pandemics’ (2021) 21(2) Medical Law International 101-115
Abstract: In light of the Covid-19 pandemic, the international community’s approach towards pathogenic viruses needs to be re-evaluated. This commentary notes that attempts to justify viral sovereignty, either under treaties or general principles of sovereignty, are flawed. Instead, viruses share more similarities with global commons and should be treated as such. More specifically, viruses should be regarded as the shared responsibility of international society, given that all countries are responsible for the continued spread of their diseases and all stand to benefit from their eradication.

von Tigerstrom, Barbara and Kumanan Wilson, ‘COVID-19 Travel Restrictions and the International Health Regulations (2005)’ [2020] (5) BMJ Global Health Article e002629
Abstract: Concerns that have been raised about states violating the International Health Regulations (2005) by imposing travel restrictions are valid, and some states have not complied with their obligations under those Regulations. Given the unprecedented situation and uncertainty about the best course of action, we should not assume that all travel restrictions violate international law, even though they were not recommended by the WHO. Some travel restrictions are more likely to be justified than others, depending on a number of factors, including how they are designed and local capacity to implement less restrictive measures. The WHO still has an important role to play in providing guidance to states as they modify or lift travel restrictions. In order for the international framework to be more effective, the WHO should have more flexibility to make early travel recommendations and develop protocols to facilitate the reopening of borders.

Udowoima, Memabasi and Inemesit Udongwo, ‘The Impact of the Use of Biological Weapons in Warfare: COVID-19 as a Glimpse’ (SSRN Scholarly Paper ID 3696669, 21 September 2020)
Abstract: The Coronavirus has brought about a disruption in nearly every facet of life. The ease of the spread of the virus has made it even deadlier. The virus has been compared to the Black Plague, a disease that was said to have killed about a third of the world’s population. The Black Plague was spread by the Mongol Forces as a biological weapon into Ukraine causing a spread throughout Europe. The Coronavirus similarly has caused the death of millions throughout continents causing some to suspect that it is a biological weapon. This article explores the possibility that the Coronavirus is a biological weapon and the legal regime governing the use of biological weapons. The article ends by giving recommendations to prevent the use of biological weapons and punish the perpetrators of the use of biological weapons.

Van Hout, MC and JSG Wells, ‘The Right to Health, Public Health and COVID-19: A Discourse on the Importance of the Enforcement of Humanitarian and Human Rights Law in Conflict Settings for the Future Management of Zoonotic Pandemic Diseases’ (2021) 192 Public Health 3–7
Abstract: The catastrophic effects of armed conflict, particularly prolonged armed conflict, on individual and public health are well established. The ‘right’ to healthcare during armed conflict and its lack of enforcement despite a range of United Nations mandated requirements regarding health and healthcare provisions is likely to be a significant feature in future conflicts, as zoonotic-induced pandemics become a more common global public health challenge. The issue of enforcement of health rights assurance and its implications for the public health management of global pandemics such as coronavirus disease 2019 (COVID-19) in and between countries and regions in conflict is the objective of this Review.

Villarreal, Pedro, 'Pandemic: Building a Legal Concept for the Future' (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2021–12, 12 May 2021)
Abstract: No legal definition of a ‘pandemic’ is enshrined in any binding international law instrument. Instead, the official explanation of the term is found in non-binding guidelines of the World Health Organization (WHO), and remains vague at best. This circumstance is partially the result of a lack of consensus amongst the medical and public health communities on common denominators. Considering the resonance of declaring a ‘pandemic’, the absence of a clear-cut definition arguably hampers the reactions by the international community of states. The current analysis addresses the definitional gap in a broader context, by examining past attempts to introduce clear-cut yardsticks for determining when a ‘pandemic’ actually begins. The paper argues that a legal definition of ´pandemic´ with both descriptive and normative elements would greatly benefit the international community by guiding action to counteract future health emergencies. To this effect, the contribution posits a series of basic considerations for future conceptual debates on when a ‘pandemic’ is occurring, and whether legal obligations for states and international institutions ought to follow.

Weerth, Carsten, ‘International Response to Covid-19: Initiatives and Declarations by the UN, WHO, WCO, WTO and Other Stakeholders on World Trade, Customs Law and Solidarity in a Human Emergency’ (2020) 1(3) Lex Humanitariae 9–21
Abstract: The worldwide spread of the SARS-CoV-2 virus from Wuhan, Hubei province, China, in 188 countries (according to WHO figures: 216 countries, territories and economic areas) represents an unprecedented threat to Global Health and Global Trade in the times of Globalization. The virus triggers COVID-19 (Coronavirus disease 2019), which can range from a symptom-free course to severe respiratory syndrome (pneumonia) and affect other organ systems as well. More than 10 million persons were infected worldwide in the end of June 2020, more than 500,000 persons die from COVID-19 (as of 30 June 2020) – a truly global pandemic spread. The United Nations (UN), World Health Organization (WHO), The Food and Agricultural Organization of the UN (FAO), World Trade Organization (WTO), World Customs Organization (WCO) and its stakeholders and partners have in the light of the global COVID-19 pandemic joined forces and developed joined trade policies and legal approaches and declarations in order to combat the social and economic impact COVID-19. This paper gives an overview of the initiatives and different approaches and sorts them in different categories: (Joint) Declarations, Lists / Databases, Reports, Guidance, Warnings and Press Releases.

Wetter, Sarah and Eric A Friedman, ‘US Withdrawal from the World Heath Organisation: Unconstitutional and Unhealthy’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 83–88
Abstract: On May 29, 2020, during the same week that U.S. deaths from COVID-19 topped 100,000, President Trump announced that the United States would end relations with the World Health Organization (WHO). In the beginning of July, the administration formally notified the United Nations of the decision to withdraw. Withdrawing the United States from the WHO would threaten both national and global health interests. The loss of U.S. funding would derail WHO’s ability to detect and respond to emergencies like COVID-19, and could reverse hard-won progress in combatting infectious and noncommunicable diseases, and addressing the social determinants of health globally. The United States also would cede its position as a global health leader, curtailing its ability to engage in global health diplomacy. Yet President Trump’s apparent attempt to unilaterally withdraw the United States from the WHO raises major constitutional implications, and Congress must not let the move go unchallenged. As the United States entered the WHO through a joint congressional resolution, the same process should be required to exit the WHO. That joint resolution also imposes withdrawal requirements of one year’s notice and full payment of dues for that year. These two conditions indicate Congress’ intent to maintain a role in any decision to vacate the WHO. Congress must now step into that role and prevent the president from ending WHO membership and funding.

Wilson, Kumanan, Sam Halabi and Lawrence O Gostin, ‘The International Health Regulations (2005), the Threat of Populism and the COVID-19 Pandemic’ (2020) 16(1) Globalization and Health 70
Abstract: The global response to the COVID-19 pandemic has laid bare weaknesses and major challenges in the international approach to managing public health emergencies. Populist sentiment is spreading globally as democratic nations are increasing their support for or electing governments that are perceived to represent ‘traditional’ native interests. Measures need to be taken to proactively address populist sentiment when reviewing the IHR (2005) effectiveness in the COVID-19 pandemic. We discuss how populism can impact the IHR (2005) and conversely how the IHR (2005) may be able to address populist concerns if the global community commits to helping states address public health threats that emerge within their borders.

Winkler, Sandra, ‘The Impact of Covid-19 on Children’s Rights’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 580–600
Abstract: In emergency situations, the people most affected are often those who are already vulnerable, and this certainly includes children. The ‘new normal’ we are living in to defend ourselves against this tiny yet dangerous enemy has serious repercussions on children’s lives. This becomes even more evident if we think of those children who are doubly vulnerable – they are even more fragile because they live in conditions of particular hardship when they live outside their family, have a disability, or live in poverty. Since the beginning of the Covid-19 pandemic, we have witnessed the proliferation of numerous initiatives by various national and international children’s rights institutions, which have called for urgent measures to protect children’s rights. At this precise moment, the concept of the child’s best interests is also reinterpreted as a result of a reasonable compression of certain children’s rights and the prevalence of others. The present paper will attempt an analytical reconstruction of children’s fundamental rights by analyzing how these rights have changed during the pandemic. In fact, it is necessary to know if and/or how much have the rights of minors changed as a result of the emergency. The second part of the paper is dedicated to the question of which children’s rights will be most compromised or changed in the post-Covid-19 era. In reflecting on the inevitable consequences that the pandemic will leave on the delicate balance of the development of children’s rights, the author will offer some proposals on how to contain the encountered difficulties.

Wong, Meagan, ‘The Law of State Responsibility and the Covid-19 Pandemic’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 321–330
Introduction: The Covid-19 pandemic has raised questions of international responsibility of States; in particular, whether States can be internationally responsible for the failure to prevent and the spread of the outbreak internally and externally across international borders; and other matters pertaining to international health law. Also, as highlighted in earlier contributions in this publication, the Covid-19 pandemic raises tensions and questions in domestic and international law. These draw to light questions of State responsibility for acts or omissions by States for various conduct that may come into question. This is particularly so when States are unable to perform obligations owed under international law to other States, international organizations or individuals, as a result of their domestic policies and actions to deal with the Covid-19 pandemic. This contribution provides an overview of the rules of international law concerning the responsibility of States for their international wrongful acts, and how these rules are relevant in the Covid-19 pandemic. The international law of State responsibility, as formulated by the International Law Commission in the 2001 Articles on the responsibility depicts the general conditions under international law for a State to be responsible for wrongful acts and the legal consequences that flow by operation of law. These general conditions are understood as the secondary rules of State responsibility, which result from the breach of primary rules, i.e. rules of customary international law or treaty law that provide international obligations on States. :

Xavier, Victor, ‘Covid-19 And International Law: Derogation Of Human Rights Under The Inter-American System Of Human Rights’ [2021] (Especial) Revista Jurídica Portucalense 61–81
Abstract: This article aims to study the implications of certain measures taken by American States, in order to address the COVID-19 Pandemic, on International Human Rights Law. Throughout this article, we will dive deep into the phenomenon of Human Rights derogations that are employed during exceptional public safety crisis. For that purpose, firstly, we will examine the context behind the protection of Human Rights under the Inter-American System. Next, attention will be paid to the exception of the universal application of International Human Rights Law. Thirdly, we will examine the most common practices adopted during the COVID-19 pandemic, and how they interact with specific Human Rights. Lastly, we contemplate some matters about the future of International Law.

Zhang, Xiaohan and Chao Wang, ‘Prevention and Control of COVID-19 Pandemic on International Cruise Ships: The Legal Controversies’ (2021) 9(3) Healthcare 281
Abstract: During the COVID-19 pandemic in 2020, a number of international cruise ships were infected, thereby resulting in serious public health and human rights problems. Multiple difficulties were encountered in the prevention and control of the coronavirus disease onboard ships, while rule-based international cooperation in this regard appeared inefficient and ineffective. By applying interdisciplinary methodologies, including empirical research of law, policy science, and health studies, this research reviewed the legal difficulties in the prevention and control of COVID-19 on international cruise ships and sought solutions from a policy-making and strategic perspective. We found that, apart from the inherent nature of cruise ships such as crowded semi-enclosed areas, shared sanitary facilities and limited medical resources, there are also nonnegligible legal reasons affecting the effectiveness of containment measures on board. In particular, there is ambiguity and even inconsistency of relevant international norms and domestic regulations, and some of the key rules are neither mandatory nor enforceable. We conclude by suggesting that rule-based international cooperation on this issue must be strengthened with respect to information sharing and management, a more effective supervisory mechanism, clarification of key rules over jurisdiction and distributions of obligations among the port states, flag states, nationality states, and cruise ship companies.

International Economic Law

This section includes literature on international trade law, international investment law, and sovereign debt.

Abbott, Frederick M, ‘The TRIPS Agreement Article 73 Security Exceptions and the COVID-19 Pandemic’ (South Centre, Geneva, Research Paper No 116, 1 August 2020)
Abstract: The COVID-19 pandemic has caused Governments to contemplate measures to override patents and other intellectual property rights (IPRs) in order to facilitate production and distribution of vaccines, treatments, diagnostics and medical devices. This paper discusses whether the COVID-19 pandemic may be considered an ‘emergency in international relations’ and how WTO Member States may invoke Article 73 (‘Security Exceptions’) of the TRIPS Agreement as the legal basis for overriding IPRs otherwise required to be made available or enforced. It concludes that the pandemic constitutes an emergency in international relations within the meaning of Article 73(b)(iii) and that this provision allows Governments to take actions necessary to protect their essential security interests.

Adebayo, Temilade, ‘Post-COVID-19 Investment: Ten Things to Learn about International Investment Law’ (SSRN Scholarly Paper ID 3609804, 25 May 2020)
Abstract: International Investment Law exists to guide the business relationship between States globally. Even though there is no one single document that says International Investment Law, Bilateral treaties between States exist to guide this relationship and place it within the bounds of Law. The expression of treaties and conventions relating to international investment have revealed the objectives of the Law to be to protect foreign investors, grant protection to attract foreign investment, and foster economic development. It therefore becomes imperative to explain in simple terms to private investors what international investment law entails.

Afronomicslaw COVID-19 Symposium on International Economic Law in the Global South_
_Note: The 37 essays contributed to this four week long symposium in May 2020 are from Africa, Asia, Europe, the Middle East, the Caribbean, North America and Latin America. See the introduction to the Symposium: Gathii, James T et al, ‘International Economic Law in the Global South and COVID-19’. See also a video introducing the Symposium.
The four major themes covered in the Symposium are:
  • ‘COVID-19 Symposium I: International Trade & International Investment Law & Policy’ – the essays from this theme are listed below.
  • ‘COVID-19 Symposium II: Intellectual Property, Technology and Agriculture’ – selected essays from this theme are listed above in the Intellectual Property, Food and Agriculture and other sections of this bibliography.
  • ‘COVID-19 Symposium III: Sovereign Debt, Finance and Competition Law’ – some of the essays from this theme are listed below in this section. Others are listed in the Competition and Consumer Law section.
  • ‘COVID-19 Symposium IV: Governance, Rights, and Institutions’ - the essays from this theme are listed in various sections: including Adminstrative Law & Governance; and Human Rights; International Law.
COVID-19 Symposium I: International Trade & International Investment Law & Policy
COVID-19 Symposium III: Sovereign Debt, Finance and Competition Law
COVID-19 Symposium IV: Governance, Rights, and Institutions

Agarwal, Prachi and Mulenga Chonzi, ‘Impact of COVID-19 on International Trade: Lessons for African LDCs’ (SSRN Scholarly Paper ID 3693901, 26 July 2020)
Abstract: The COVID-19 pandemic has highlighted the lack of provisions in existing trade agreements to tackle such a crisis. Advanced and emerging countries, fearing issues of food and national security, have responded with knee-jerk policy measures to promote national production, reshoring of manufacturing, and to reduce dependence on trade. This will adversely affect the least-developed countries (LDCs) in Africa due to their high dependence on trade and low levels of diversification. Proposals have been made by various countries to the WTO to ensure the free flow of trade in essential goods and maintain supply chain connectivity. Hence, there is scope for African LDCs to sign future plurilateral agreements with existing, economically- advanced trade partners, to ensure that no new protectionist measures will be erected against the LDCs during crisis periods, while also promoting production at home. Further trade cooperation between LDCs in Africa within the AfCFTA framework can provide an opportunity to promote resilient regional trade relations through construction of disaster-proof supply chains of essential, and non-essential goods and services. Maintaining food security in these African LDCs is of utmost importance and can be an effective bargain in future trade agreements.

Alvarez-Jimenez, Alberto, ‘The International Law Gaze: COVID-19 and Foreign Investors’ [2020] New Zealand Law Journal 300–304
Abstract: This article shows that New Zealand is largely complying with its obligations to foreign investors who are nationals of the parties to the FTAs. The piece also indicates that security exceptions in the FTAs or the customary rule of necessity in international law even allow the country, within limits, to deviate from these obligations during the crises prompted by COVID19, if needed in the near future. Obviously, this is an assessment limited to the status quo created after the first four months of the pandemic.

Anichebe, Uche, ‘The COVID-19 Pandemic: How the World Bank Can Aid Its Member States to Flatten Their Legal Curves’ (SSRN Scholarly Paper No ID 3786747, 1 October 2020)
Abstract: The 2019 coronavirus disease (COVID-19) can be likened to a thief in the night. What may have begun in December 2020, as a single cluster of influenza-like illness in Wuhan, China, spread rapidly like wildfire around the world within the first quarter of 2020, and presented the most acute global health crises with unprecedented implications. Sadly, nearly every country was ill-prepared for the outbreak of a global pandemic and several months afterwards, member states of the World Bank (the ‘Member States’) continue to make adjustments in response to the COVID-19 pandemic (the ‘Pandemic’) as their key economic sectors grapple with its far-reaching effects. One of the overarching missions of the World Bank is to end extreme poverty. In the past decades, the World Bank has adopted several strategies to alleviate poverty, including the promotion of the legal and justice systems of the Member-States, as a fundamental element of economic development. Unfortunately, the Pandemic also dealt a heavy blow on the legal and justice sectors of Member States, thereby necessitating the urgent interventions of relevant stakeholders, including the World Bank. The aim of this essay is to consider how the World Bank can provide support to the legal and justice systems of Member States, with a view to assisting them in flattening their legal curves. This essay will consider the overall implication of the Pandemic on legal and justice systems, citing examples from the current situation of some Member States. Greater emphasis will be placed on multi-jurisdictional issues besetting legal and justice systems, which are either novel or have become magnified due to COVID-19. Furthermore, this essay will recommend strategies that may be adopted by the World Bank in strengthening the legal and judicial systems of the Member States.

Arato, Julian, Kathleen Claussen and J Benton Heath, ‘The Perils of Pandemic Exceptionalism’ (2020) 114(4) American Journal of International Law 627–636
Abstract: In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of ‘exceptionalism.’ It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

Arnold, Theresa, Mitu Gulati and Ugo Panizza, ‘How to Restructure Euro Area Sovereign Debt in the Era of Covid-19’ (2020) 15(3) Capital Markets Law Journal 322–346
Abstract: Key pointsCountries with large debts stocks are vulnerable to the vagaries of the markets. Confidence crises can arise out of nowhere, constricting access to the markets.As of this writing in mid-2020, as a result of Covid-19, Italy risks such a crisis. A number of other euro area countries, hard hit by the novel coronavirus may soon reach that stage as well.The question arises as to whether euro area countries such as Italy should put in place mechanisms that will help them better prepare for the possibility of a severe debt crisis.In effect, the choice is whether to buy insurance. The cost of buying such insurance is that the possibility that markets will see the sovereign’s proactive steps to protect against a crisis not as an indication of prudent governance but rather as an indicator that a crisis is imminent.We use the case of Italy, which has a large debt stock and a known vulnerability to confidence crises to set forth the options a euro area country has in anticipation of a possible future debt restructuring. It can: do nothing; do a little; or do something substantial.

Augustin, Patrick et al, ‘In Sickness and in Debt: The COVID-19 Impact on Sovereign Credit Risk’ (SSRN Scholarly Paper No ID 3613432, 17 July 2020)
Abstract: The COVID-19 pandemic provides a unique setting in which to evaluate the importance of a country’s fiscal capacity in explaining the relation between economic growth shocks and sovereign default risk. For a sample of 30 developed countries, we find a positive and significant sensitivity of sovereign default risk to the intensity of the virus’ spread for fiscally constrained governments. Supporting the fiscal channel, we confirm the results for Eurozone countries and U.S. states, for which monetary policy can be held constant. Our analysis suggests that financial markets penalize sovereigns with low fiscal space, thereby impairing their resilience to external shocks.

Awoyomi, Tolulope, ‘An Anatomy of the International Financial System Vis-À-Vis the Human Body System’ (SSRN Scholarly Paper ID 3787569, 22 December 2020)
Abstract: This paper attempts to construct an anatomical structure around key constituents in the International Financial System (‘IFS’) in comparison with anatomical features of the human body. The IFS is a conglomeration of financial systems—encompassing financial and monetary activities—that are so intertwined that the fragility of a system, affects the stability of the IFS. Similarly, the human body system is a compendium of sub-systems working together to ensure the body functions effectively. The human body and IFS are both products of a complicated intertwined formation of sub-systems. Thus, analogies are made between the structure and functions of key constituents in the IFS, and vital organs and components in seven (7) systems of the human body—circulatory, respiratory, digestive, nervous, skeletal, integumentary, and respiratory systems. The contextual structure of this paper is twofold: (1) making analogies between constituents of the IFS and components of the human body system, (2) positing supporting evidence to the analogies through occurrences from select global financial crises, and a global pandemic. The global financial crises are: The Great Depression (1929-1939), The International Debt Crisis (1982-1989), The Asian Financial Crisis (1997-1999), and The Great Recession (2007-2009). The global pandemic is the COVID-19 pandemic (2019-till date).

Battistella, Perle, ‘Trade Bodies Want SFTR Delay Due to Coronavirus’ Global Investor (6 April 2020)
Abstract: Trade bodies the International Securities Lending Association (ISLA) and the International Capital Market Association (ICMA) have urged the European Securities and Markets Authority (ESMA) to delay the Securities Financing Transactions Regulation’s (SFTR) go-live date. In an open letter addressed to Steve Maijoor, chair of ESMA on March 16, the firms have asked for a delay of the SFTR go-live date of April 11.

de Beer, Jeremy and E Richard Gold, ‘International Trade, Intellectual Property, and Innovation Policy: Lessons from a Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 579
Abstract: This chapter addresses intersections among international trade law, intellectual property rights, and domestic innovation policies to prevent, detect, and treat pandemics. Structural issues with Canada’s innovation system affected preparedness for this pandemic and, unless remedied, will impede responses to future crises. In this chapter, we suggest aligning domestic and international policy measures to nuance Canada’s approach to intellectual property and accelerate Canada’s global contributions through open science.

Bolton, Patrick, G Mitu Gulati and Ugo Panizza, ‘Legal Air Cover’ (Duke Law School Public Law & Legal Theory Series No 2020–63, 4 October 2020)
Abstract: The economic harm being caused by the novel coronavirus may soon result in multiple sovereign debtors moving into default territory. But the existing playbook for dealing with multi-sovereign emerging market debt crises is blank. The only debt crisis scenario we know is protracted country-by-country and contract-by-contract negotiated workouts. As of this writing, expert groups are working on the design of a mechanism to run multiple sovereign debt workouts simultaneously. Those designs, however, will take time to configure and get international buy-in. This paper sets forth some options to provide temporary legal protection to the debtor countries in the meantime; while they are in need of diverting resources toward COVID amelioration. This is the notion of ‘legal air cover’. The options we propose involve ex post state intervention in debt contracts. They are extreme and may come with risks. But we show that in the case of Greece, when intervention such as we envision was necessary, there were no negative spillovers on periphery Eurozone debt markets associated with the Greek ex post modification of contract terms.

Bradlow, Daniel D and Stephen Kim Park, ‘A Global Leviathan Emerges: The Federal Reserve, COVID-19, and International Law’ (2020) 114(4) American Journal of International Law 657–665
Abstract: The COVID-19 pandemic highlights the importance of the Federal Reserve as a leading actor in global economic governance. As a creature of U.S. domestic law with an international presence and operational independence, the Fed wields authority without a well-defined international legal status, international legal standards to guide its conduct, or accountability to those around the world affected by its decisions. This Essay explores three conceptual approaches that could be used to develop norms, standards, and principles to address this gap.

Braun, Tillmann Rudolf, ‘State Responsibility and Investment Protection in the Time of Pandemic’ in Rainer et al Hofmann (ed), Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2021)
Abstract: To contain the spread of the global pandemic and to prevent the overburdening of their health systems, States worldwide have taken a host of previously unimaginable measures. While these measures ostensibly serve to mitigate the effects of the global pandemic, they also have an immediate impact on the commercial interests not only of domestic actors but of foreign investors. Some of these investors may feel disproportionately, or too undifferentiatedly, impacted by these policies, and therefore be drawn to the possibility of claiming on the more than 3,000 bilateral investment treaties (BITs) and regional treaties in force around the world. Affected investors may argue, in this potential ‘new frontier’ of investment treaty claims, that there can be no reason in principle why they, through no fault of their own, should be required to bear the expense of such measures for the benefit of wider society. In answer to such claims, States may seek to rely on general doctrines of customary international law such as ‘police powers’ or ‘state of necessity’. However, a closer look at these doctrines might reveal that they are not entirely free from contradictions, and that the risk allocations on which they are premised may be in need of some refinement.While the police powers doctrine (also referred to as the ‘right to regulate’) empowers governments to implement measures for the protection of health, often in spite of the potential adverse consequences to certain parties, it is important to ask where the boundaries of the doctrine are to be set. Is the authorization that it offers unlimited? Or does it require—perhaps in order to more clearly differentiate (non-compensable) police powers from (compensable) indirect expropriation—a proportional relationship between the public purpose fostered by the measure and the interference with the investors’ property rights? How would this apply in a global health emergency? Regarding the customary international law defence of necessity, it is well known that its ‘only way’ condition is interpreted comparatively strictly as an ‘only one single means’ requirement. One might wonder whether, in view of contemporary necessity situations, this interpretation is still realistic, and whether a broader approach might not prove much more appropriate? For one thing is certain: the next great risk, such as a global pandemic of similar proportions, is already on the horizon.

Carreño, Ignacio et al, ‘The Implications of the COVID-19 Pandemic on Trade’ (2020) 11(2) European Journal of Risk Regulation Special Issue -‘Taming COVID-19 by Regulation’ 402-410
Abstract: On 17 March 2020, the President of the European Council, Charles Michel, and the President of the European Commission (hereinafter, Commission), Ursula von der Leyen, announced further European Union (EU) actions in response to the COVID-19 outbreak. Since the pandemic reached Europe, the EU has adopted a number of trade-related measures, including the issuance of guidelines for national border management, as well as export authorisation requirements. On 14 March 2020, the Commission adopted ‘Commission Implementing Regulation (EU) 2020/402 of 14 March 2020 making the exportation of certain products subject to the production of an export authorisation’, temporarily restricting exports of ‘personal protective equipment’ to destinations outside of the EU. On 14 April 2020, the Commission announced that it would narrow down export authorisation requirements to protective masks only and extend the geographical and humanitarian exemptions. Governments around the world have been implementing trade-related measures in response to the COVID-19 pandemic, some trade restrictive, but a number of countries have also called for the elimination of export controls and restrictions on essential goods. As the greater implications of the COVID-19 pandemic on trade are still difficult to assess, the emergency measures taken by affected countries already require legal scrutiny. At the same time, it must be noted that, as noted above for the EU measures, measures around the world are subject to change dynamically in view of the evolution of the pandemic.

Cattelan, Valentino, ‘Sacred Euro: Sovereign Debt(s) and EU Bare Credit in the Corona Crisis’ (SSRN Scholarly Paper No ID 3592382, 4 May 2020)
Abstract: This is a contribution that I wrote for the discussion opened by Prof. Werner Gephart among the current and former Fellows of the Käte Hamburger Center for Advanced Study in the Humanities ‘Law as Culture’, on the topic ‘The Corona Crisis in light of the Law-as-Culture Paradigm’. The paper advances an interpretation of the current EU political impasse about how to deal with the COVID-19 emergency by shifting Agamben’s paradigm of the ‘homo sacer’ to the ‘sacertas’ of the Euro. In this frame, it describes the Euro as a currency (nomisma) lacking in an appropriate nomos to give Member States (economic) credit backed by EU (political) credit.

Chaisse, Julien, ‘Both Possible and Improbable: Could COVID-19 Measures Give Rise to Investor-State Disputes?’ (2020) 13(1) Contemporary Asia Arbitration Journal 99–184
Abstract: This Article explores the role of investment law and investment arbitration in (and after) the COVID-19 crisis in the context of transnational health policy. This Article discusses a technical possibility (COVID-19 measures can give rise to investor-state disputes) and explains why most of these claims will probably not be successful (most COVID-19 measures are covered by international defenses). Through a comprehensive survey of measures adopted across 50 jurisdictions, the Article shows that most of these measures are in line with the World Health Organization regulations. Furthermore, these domestic measures could be subject to a number of international law exceptions, allowing States to justify the potential violations. Nevertheless, the Article identifies a minority of measures that may have the potential to lead to successful claims. Paradoxically, the most problematic measures (such as taxation measures and sovereign debt increase) only indirectly address the pandemic.

Clark, Ian and Dimitrios Lyratzakis, ‘Towards a More Robust Sovereign Debt Restructuring Architecture: Innovations from Ecuador and Argentina’ (2020) Capital Markets Law Journal Article kmaa032 (advance article, published 25 December 2020)
Introduction: Many developing and emerging countries face acute financial pressures as a result of COVID-19-related expenditures, increased re-financing costs due to market volatility and the global economic slowdown created by the pandemic. In Argentina and Ecuador, these pressures exacerbated existing macro-economic imbalances and led their governments to seek comprehensive restructurings of their public debts, including debt owed to international capital markets investors. In the absence of a sovereign bankruptcy regime, the resolution of sovereign debt crises is a matter of contract (re)negotiation between the sovereign and its creditors.

Clover Alcolea, Lucas, ‘The COVID-19 Crisis: Core Investment Law Issues Revisited’ (SSRN Scholarly Paper ID 3740542, 1 May 2020)
Abstract: The COVID-19 epidemic which is currently sweeping the globe represents a serious challenge not only for the global health system, but also for the more esoteric world of international investment law. Crises inevitably produce litigation, and there is no reason to suppose that this crisis will be any different to any other in this regard. However, as will be seen below, disputes related to health emergencies appear to be less frequent than disputes related to financial or civil emergencies, e.g. civil insurrection, war, and so on. In consequence, there is a lacuna of both jurisprudence and academic writing addressing the possibility of claims against states as a result of measures taken in the context of an epidemic. Although there is a significant body of literature on states use of police powers in the context of their right to regulate, little of this deals with issues of health, and none of it addresses the specific context of an epidemic. In the same vein, although some international investment agreements include carveouts for measures taken to protect health, there are very few cases interpreting such provisions and none in the context of an epidemic let alone a pandemic. Lastly, there appears to be little writing and no cases which address the potential application of the defence of necessity under customary international law to such claims.This article therefore aims to address the gap in the literature by considering the potential claims which could be brought against states for actions taken in the current crisis and the defences states might raise against such claims. As the legal basis of such claims and defences is not in itself novel, this will involve revisiting some core investment law issues but always through the lens of the COVID-19 crisis and considering the latest developments in the field. It is also important to note as an initial point that this article does not aim to be an exhaustive study of all the potential claims and defences which might be raised as a result of the current crisis, rather it will only address the most important. The article will proceed firstly, by briefly outlining potentially problematic measures taken by governments due to the COVID-19 pandemic; secondly, it will analyse the potential basis of claims under international investment agreements due to such measures and, thirdly, it will discuss defences which states could raise against such claims. (Note: updated paper 25/05/2020 and 21/09/2020 (footnotes corrections))

Cristani, Federica, ‘How the Coronavirus Crisis Challenges International Investment (Customary) Law Rules: Which Role for the Necessity Defense?’ (2021) 53(1) Case Western Reserve Journal of International Law 89-116
Abstract: The COVID-19 pandemic is affecting every aspect of our daily life; what’s more, it is affecting and will affect for some years from now the global economy. The present working paper offers a reflection on how State’s restrictive trade measures are affecting foreign investors’ rights. The study investigates how the exceptional circumstances of the COVID-19 pandemic can justify State’s measures affecting foreign investors’ rights and whether they can be legally justified under the customary international rule of the necessity defense. The first part of the paper will analyze the requirements of the states of necessity, as codified in article 25 of the ILC Draft Article. The second part of the paper will apply the requirements of the customary law rule of the necessity defense to the COVID-19 pandemic, taken into account national measures that have been taken by States during this period; it will be questioned whether the global and exceptional circumstances of the spread of COVID-19 will influence (and maybe change) the way we interpret and apply this customary rule.

Crozet, Matthieu, Banu Demir and Beata S Javorcik, ‘International Trade and Letters of Credit: A Double-Edged Sword in Times of Crises’ (EBRD Working Paper No 258, 12 July 2021)
Abstract: This study argues that the ability to mitigate risks associated with international trade is particularly important at times of heightened uncertainty, such as the economic crisis caused by the Covid-19 pandemic. Risk mitigation can be achieved through letters of credit (LCs), trade finance instruments providing guarantees to trading partners. As their use varies across products, exports of some products are more resilient than others during times of increased uncertainty. This situation reverses in times of financial crises when distressed banks may limit the supply of LCs. Our analysis using data on US and EU-15 exports during the Covid crisis and the Global Financial Crisis provides empirical support for these hypotheses.

Daza Aramayo, Lourdes Gabriela and Marek Vokum, ‘Covid-19 and International Trade’ in Gian Luca Gardini (ed), The World Before and After COVID-19: Intellectual Reflections on Politics, Diplomacy and International Relations (European Institute of International Relations, 2020) 61–64

Desta, Melaku Geboye, ‘Rules-Based International Cooperation During a Global Pandemic: The COVID-19 Crisis and Trade Law Lessons for Africa’ in Zeray Yihdego, Melaku Geboye Desta and Martha Belete Hailu (eds), Ethiopian Yearbook of International Law 2019 (Springer, 2020) 11–30
Abstract: While COVID-19 is fundamentally a public health crisis, it has also brought with it a global socio-economic emergency unprecedented in the history of the world. This article examines an unlikely victim of the COVID-19 pandemic, the global regime for the governance of international trade, and does so from an African perspective. Following the proliferation of national measures restricting the export of COVID-19-essential personal protective equipment and other medical products at a time when trade literally can mean saving lives, this article asks whether import-dependent countries such as most states in Africa can rely on the multilateral trading system to secure access to these life-saving equipment and supplies. Answering this question in the negative, the article argues that those African countries that lack domestic manufacturing capacity—which make up the majority on the Continent—need to rethink their commodity-export-dependent development strategy and refocus on industrialisation backed up with adequate research and development capacity. Finally, the article also suggests that States Parties to the AfCFTA Agreement should use this period as a window of opportunity to revisit the text of the Agreement so a revised AfCFTA has a better chance of coping with the next pandemic or emergency.

Dolea, Sorin, ‘COVID-19: Public Health Emergency Measures and State Defenses in International Investment Law’ (2020) 2 Integration through research and innovation 87–90

Duggal, Kabir, Rekha Rangachari and Kanika Gupta, ‘Consequences of Crisis and the Great Re-Think: COVID-19’s Impact on Energy Investment, Sustainability and the Future of International Investment Agreements’ (2021) 14(3) The Journal of World Energy Law & Business 133–146
Abstract: The COVID-19 pandemic and its resulting disruptions are having a significant impact on the global economy and international investments. Various State measures to address the pandemic are leading to widespread economic disruptions across several industries, including the energy sector. The current crisis has impacted energy demand, disrupted the global supply chain and created financial uncertainty. The pandemic has exacerbated issues relating to health, the environment, labour and human rights in the energy sector. This article seeks to understand the pandemic’s impact in shaping future human rights policy in international investment law. This article analyses current drafting trends in international investment agreements (IIAs) in 2019–2020, particularly in the context of recent developments in sustainable development and human rights. Although there are some noteworthy developments in recent IIAs, the pandemic has highlighted the need for further treaty reforms. It provides an opportunity for policymakers and corporations alike to address human rights issues and to incorporate the principles of sustainable investment into IIAs. The energy sector in particular plays a significant role in promoting sustainable development and post-COVID policy reforms will be essential for future energy security and global stability. In conclusion, this article considers the future of potential reforms in the post-COVID recovery agenda while keeping in mind energy and climate goals.

Evdokimov, Alexander Ivanovich and Mushfiq Guliyev, ‘International Trade in the Age of Turbulent Uncertainty, Globalization, Regionalization and Pandemic’ (SSRN Scholarly Paper No ID 3763101, 27 December 2020)
Abstract: In the coming years, large-scale changes are inevitable in the development of international trade, caused to a large extent by the conflict between the USA and China, the degradation of the WTO, and most importantly, the development of integration processes in various regionsand the impact of the COVID-19 pandemic on global problems of economic development in general. This paper analyzes the modern aspects of the international trade policy system in the context of the active development of integration processes in various regions, assesses the role of the WTO and some ways to improve its activities in accordance with modern challenges.Economic studies identified the weaknesses in the basic anti-dumping provisions of the WTO that could contribute to abusea long time ago, and instead suggested relying on the principles and criteria of anticompetitive struggle. The details of such criticisms require the improvement of the legal approaches and analytical methods of the WTO as an institution for regulating international trade.This paper outlines some of the main directions and problems of the transformation of the WTO in the context of comparing the approaches to them. Despite the fact that world leaders have begun discussions on reforming the WTO, complete unanimity has not yet been observed. It is still unclear, even according to the WTO, what these discussions will lead to, which areas of trade promise the greatest prospects in the future, and which will require reorganization.However, the systematic view of the authors shows that the burden of these problems was very unbalanced. The main idea of this study is that the global regulation of international trade and the influence of turbulent currents of uncertainties at the national level can be improved with a higher degree of sustainable win-win approaches to reforming the WTO and regional spaces of trade relations. This means that the draft of the future international trade order, especially if it is based on a network of related regional and interregional trade agreements, can become increasingly practical for the effectiveness of trade relations and public confidence regarding the idea of openness and globalization.

Gantz, David A, ‘The USMCA’s Future in Context’ (Arizona Legal Studies Discussion Paper No 20–31, 16 June 2020)
Abstract: This report - the eleventh and final in a series that began a year and half ago - briefly considers what in the author’s view are the most significant of the external factors that could have a significant impact on whether the USMCA, now that it has entered into force, will achieve the levels of success in stimulating North American investment, jobs and trade that the three Parties hope for. These important factors include the U.S. Section 232 (‘national security’) tariffs on steel and aluminum; the ongoing and expanding United States-China trade war; the emasculation by the United States of the World Trade Organization’s dispute settlement system; the somewhat unpredictable nature of the U.S. and Mexican presidents; and the impact of the coronavirus pandemic. All of these add to the challenges facing the three governments and private stakeholders.

García, JP Moyano, ‘Customary Law Defenses Against COVID-19 Investment Claims’ (2020) Transnational Dispute Management (TDM) (advance article, published 4 June 2020)
Abstract: The ongoing global pandemic has forced States to implement a variety of emergency measures, some of which could potentially lead to investment claims and, under such circumstances, States may rely on customary law defenses. Particularly relevant for purposes of a global pandemic scenario are the defenses based on force majeure, distress and necessity. This article will analyze the specific requirements for each of the defenses, it will briefly explain their constitutive elements, review the known cases that have considered them, and thus discern whether they would be appropriate for the possible challenges faced by States.

Gruszczynski, Lukasz, ‘The COVID-19 Pandemic and International Trade: Temporary Turbulence or Paradigm Shift?’ (2020) 11(2) European Journal of Risk Regulation Special Issue-‘Taming COVID-19 by Regulation’ 337-342
Extract from Introduction: International trade is also one of the potential victims of the current pandemic. As it is too early to assess the real impact of the various processes that are taking place now, the objective of this text is limited. Instead of identifying and analysing the probabilities of different scenarios, the intention is to highlight one possible course of action that seems to be emerging in the field. To this end, the two following sections discuss the short- and long-term consequences of the current pandemic for international trade.

Gulati, Mitu, ‘The Value of Voluntary COVID-19 Securities Disclosure: Zero?’ 15(3) Capital Markets Law Journal 259–261
Abstract: Extract: An age-old question in the world of securities disclosure is whether there is value in mandating that issuers disclose key pieces of information about themselves to the investing public or whether these issuers will voluntarily disclose the optimal amount of information as a function of reputational pressures… Yet, there is no clear answer to the core question of whether issuers will voluntarily disclose useful information that only they know to investors at key times (eg when investors are being asked to buy securities) or whether a mandatory system with penalties and monitoring is necessary to induce this disclosure. The current COVID-19 pandemic may present an opportunity to examine this question in the sovereign issuer context. As a result of a strange confluence of factors, there seems to little negative effect of this global pandemic on the international sovereign debt market. If anything, this market is booming more than ever with countries across the range ratings quality being able to borrow billions of dollars at rates comparable to pre-COVID times. Important for purposes of the question we have raised, each and every one of these countries has been impacted by the pandemic differently. And, more important, each of these countries is taking different steps to tackle the crisis and has information as to what is going on at the local level that global investors likely know little about.

Hagemann, Tim, ‘Corporate Wealth Over Public Health? Assessing the Resilience of Developing Countries’ COVID-19 Responses Against Investment Claims and the Implications for Future Public Health Crises’ (2021) 34(1) Pace International Law Review (forthcoming)
Abstract: In the wake of the COVID-19 pandemic, states around the world swiftly enacted a multitude of far-reaching emergency responses to contain the viruses’ spread and to cope with the economic repercussions of the ensuing crisis. However, these measures detrimentally impacted the operating conditions of many businesses or otherwise decreased their profitability. As this inevitably affected foreign investments, investors could be tempted to invoke ISDS clauses in International Investment Agreements to initiate proceedings before arbitral tribunals and seek compensation for loss of profit caused by states’ COVID-19 responses. Due to the specific circumstances in most developing countries, they were hit particularly hard by the crisis and are especially vulnerable to the threat of investment claims. It is therefore important to enable developing countries to realistically anticipate the risk of investment arbitration by assessing the chances of success of foreign investment claims against those policies that were most frequently adopted by them amidst the crisis. Against this background, this paper assesses how likely developing countries’ COVID-19 responses breached substantive standards of investor treatment under typical IIAs and which defence strategies states may invoke to justify their regulatory action. Based on this analysis, this paper concludes by formulating policy recommendations on how developing countries may enhance the resilience of their emergency responses against foreign investors amidst future public health crises.

Haugen, Hans Morten, ‘Does TRIPS (Agreement on Trade‐Related Aspects of Intellectual Property Rights) Prevent COVID‐19 Vaccines as a Global Public Good?’ (2021) 24(3/4) Journal of World Intellectual Property 195–220
Abstract: The article analyses the global public goods approach to COVID‐19 technologies, embedded in 2020 affirmations by the World Health Assembly (WHA), the UN Human Rights Council and G20 on broad immunization against COVID‐19. After identifying the access to COVID‐19 tools (ACT) Accelerator members, the UN efforts are identified, focusing primarily on the UN human rights bodies, acknowledging how these and the WHA have mutually reinforced each others’ efforts. The article finds that the global public goods terminology appeared in UN resolutions in 2020, while wording that included vaccines—on an equal footing as medicines—appeared in 2016, and recognition of generic medicines appeared in 2019. The so‐called Trilateral Cooperation on IP and public health between two UN specialized agencies and the World Trade Organization (WTO) has increased awareness of the flexibilities within WTO’s TRIPS Agreement. These flexibilities are explained. With notable exceptions, like India, these flexibilities are not widely applied in domestic legislation. A different emphasis characterizes the millennium development goals era as compared to the sustainable development goals era, and this shift is explained by applying relevant theories. Among pro‐TRIPS developed countries there is an acknowledgment of obstacles created by the IP system, but their overall position has not changed.

Huang, Chieh, ‘Exempting and Justifying Covid-19 Related Export Restrictions Under WTO Law’ (2021) 48(2) Legal Issues of Economic Integration 201–222
Abstract: WTO Members have adopted various trade-related measures under their domestic laws in response to the outbreak of Covid-19. The article discusses ways to exempt or justify quantitative export restrictions or bans which are in principle prohibited by Article XI:1 GATT.To this end, it sheds a light on the different scopes and requirements of Article XI:2 (a), Article XX (b) and ( j) GATT, as well as of Article XXI (b) (iii) GATT. The article finds that the GATT provides a solid legal framework for both the exemption and justification for Covid-19 related trade measures; additionally, it raises the question of whether Article XXI (b) (iii) GATT likewise provides an appropriate legal basis to justify Covid-19 related trade restrictions.

Kassa, Woubet, ‘COVID-19 and Trade in Africa: Impacts and Policy Response’ (SSRN Scholarly Paper ID 3619230, 1 June 2020)
Abstract: Measures adopted to curtail the spread of COVID-19 have led to a sharp contraction of the global economy and an even larger decline in global trade, with significant implications on the livelihoods of people in Africa. Despite the relatively low number of cases, the region’s economy would be hard hit due to its high reliance on trade, heavy dependence on commodities, a fragile food system, and limited fiscal capacity to respond. This reinforces the region’s inherent vulnerabilities, posing risks of wiping out the gains made in poverty reduction. Countries that have been registering robust growth face rapid growth declines. The response calls for a regional and global coordination to scale up safety nets, facilitate flow of essential goods and ease the region’s debt burden to free some fiscal space. There is a need for active policies to support enterprises so that disruptions are not permanent. This requires coordinated effort between government, workers organizations, global lead firms as well as domestic firms. This may also provide opportunities to introduce reforms that would otherwise be considered sweeping. As they chart their operations, beyond the pandemic, countries should reconsider their industrial policies and firms need to rethink their strategies to address emerging uncertainties.

Kembabazi, Gloria, ‘Local Industrial Production in EAC & Uganda (Reflecting on the AfCFTA and the Emergence of COVID-19): Legal Framework’ (2020) 7(4) KAS African Law Study Library - Librairie Africaine d’Etudes Juridiques 594–600
Abstract: This paper analyses the state of local industrial production in Uganda and how the emergence of COVID-19 has impacted it. This analysis bears in mind the regional context of Uganda as Partner State of the East African Community and a member of the African Union. Both of these institutions have mechanisms that impact on trade and relatedly on local industrial production, most notably the newly established African Continental Free Trade Area (AfCFTA). Overall, the paper makes a case for furthering local industrial production drawing on the lessons from the economic and developmental impact that the pandemic has wrought on the country.

Khanderia, Saloni and Sagi Peari, ‘Party Autonomy in the Choice of Law under Indian and Australian Private International Law: Some Reciprocal Lessons’ (2020) 46(4) Commonwealth Law Bulletin 711–740
Abstract: The outbreak of the COVID-19 pandemic will affect the performance of several contracts and is likely to increase the number of disputes before the courts. In agreements with a foreign element, the adjudication of the rights and liabilities will depend on the applicable law. Most legal systems have embraced the doctrine of party autonomy and, accordingly, permit the parties to expressly select the law to govern the disputes that arise from international contracts. India and Australia are no exception to this trend. In general, the courts in both the commonwealth countries have reported having been influenced by judicial practices of one another to develop their own law. Despite their common law roots, the interpretations attached to the doctrine of party autonomy in the choice of law have varied in some respects in these countries. The paper analyses the judicial trends on the subject and demonstrates the role that party autonomy will play in resolving international disputes where the performance has been affected by the eventualities such as the COVID-19 pandemic in India and Australia. The paper delves into the manner in which the courts in India and Australia may offer reciprocal lessons to each another to revolutionise to interpret the doctrine of party autonomy in the choice of law.

Komolafe, Oyin, ‘Global Epidemic: Coronavirus, the Law and the Economy’ (SSRN Scholarly Paper No ID 3603153, 15 April 2020)
Abstract: Following the outbreak of the COVID-19 pandemic in Wuhan, China, the virus spread like wildfire and as a result, the world has been recording daily fatalities in thousands. In a bid to curb the spread of the virus, containment measures have been adopted by several countries, and this has grounded the global economy to a halt. Stock market prices have plunged, global industries have been badly hit, and global integration has not been spared either. This has led to the clamour for the implementation of effective measures to mitigate the current and possible future effects of the coronavirus pandemic on the global economy. As such, this essay shall attempt a critical examination of the effects of coronavirus on the global economy and establish a linkage between these effects and the position of the law as a tool of mitigation.

Krisnady, Kesumadiksa and Desy Churul Ani, ‘Quantitative Trade Barrier Regulation under GATT/WTO and Its Implementation Toward Indonesia’s Policy on Food and Animal Commodity During Covid-19’ (2nd International Conference on Trade, Business, Human Right and Globalization (ICHB-HRsG,) 11 November 2020)
Abstract: With the outbreak of the Coronavirus Disease-19 (Covid-19), all countries are taking all forms of action to prevent the spread, prohibiting exports, and imports. Indonesia has also taken a step and experienced the impact of this export and import ban. in this case is food Commodities; Indonesia requires exporting countries to obtain an Import Approval Letter (SPI) by including the country of origin of the exporter, as stated in the Ministry of Trade Regulation Number 117 of 2015 concerning Provisions for Sugar Imports and Regulation of the Ministry of Trade Number 29 of 2019 concerning Export Provisions and Import of Animal and Animal Products. The World Trade Organization (WTO), as an international organization in charge of world trade, has regulated the export and import prohibition in Article XI Annex IA WTO Agreement (General Agreement on Tariffs and Trade (GATT)) concerning Restrictions on Quantitative Trade. Then how are the arrangements regarding the quantitative trade restrictions allowed by the WTO? Can the existence of the Covid-19 pandemic be a factualbasis for countries to ban exports and imports? This paper will discuss the interpretation of Article XI GATT, how it will be implemented in WTO cases, then compared whether the requirements listed in the two regulations of the Ministry of Trade above are consistent with the normative interpretation in Article XI GATT.

Kurpad, Meenakshi, ‘Basel IV: The Challenges’ (SSRN Scholarly Paper ID 3614051, 19 April 2020)
Abstract: The Basel IV accords that were introduced in late December 2017 was the first set of Basel accords that was not introduced against the backdrop of a global financial crisis. While Basel IV addresses most of the shortfalls of Basel III, it has failed to address the issue of risk-weights that are attached to sovereign debt, which is a significant shortcoming under the Basel Accords. This paper analyses the Basel accords, particularly in light of the economic impact of the novel coronavirus (‘COVID-19’) pandemic, which has proven to be surprise test on the resilience of the revamped Basel Accords.

Lawrence, Jessica, ‘Covid-19, Export Restrictions, and the WTO: Magnifying Global Divisions in a Time of Crisis’ in Carla Ferstman and Andrew Fagan (eds), Covid-19, Law and Human Rights: Essex Dialogues (School of Law and Human Rights Centre, University of Essex, 2020) 107–115
Abstract: Trade policy has been an important part of the global response to Covid-19. In order to boost production and increase the supply of critical goods, countries have lowered tariff barriers, put export restrictions in place, and smoothed the path to issue compulsory licenses for patented medicines and medical devices. All of these measures touch on trade policy, and fall under the ambit of the World Trade Organisation (WTO). This raises the question: do the flexibilities built into WTO law give countries the policy space they need to take emergency measures during this health crisis? This short paper explains the WTO rules and their application to national trade measures in response to Covid-19 using the example of export restrictions. It finds that from a legal perspective, WTO rules are flexible enough to permit countries to deviate from their normal obligations during this time of crisis. However, from a justice perspective, these flexibilities will be far more useful for wealthy developed states than for those with less purchasing power and production capacity. Indeed, the flexibility built into WTO law may prove ineffectual—and even detrimental—for poorer states, as it permits the wealthy the policy space to take measures in their own interest while leaving the less powerful without access to critical goods. The paper concludes that here, as elsewhere, the negative economic effects of Covid-19 will fall disproportionately on the poor and the vulnerable.

Le, Thi Mai, ‘Potential Impact of Provisions of Intellectual Property Rights Related to the Pharmaceutical Sector in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership on Access to Medicines, in the Context of the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3903976, 16 September 2020)
Abstract: With the aim of strengthening the economic integration to liberalize trade and investment among members, 12 countries in the Pacific Rim including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam came together under a FTA called Trans-Pacific Partnership Agreement (TPP). After the withdrawal of the United States based on the consideration that the agreement would adversely affect the its economy and independence, the remaining 11 countries came up with a new FTA, now renamed as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). In terms of IPRs, among various provisions, CPTPP incorporated a few controversial articles intensively related to the pharmaceutical sector including patentability, patent term extension, test data exclusivity and patent linkage. These provisions promote a higher level of protection for IPRs compared to the TRIPs agreement; therefore, raise strong arguments regarding their potential consequences on public health. Although the first three provisions, namely patentability, patent term extension and test data exclusivity, were suspended in the transition from TPP to CPTPP, their possible impact on access to medicines has not withered yet based on the fact that the negotiation of these suspended articles can be reopened to welcome the United States back and attract new members to the game. The thesis will focus on analyzing the aforementioned IPRs introduced in CPTPP, both the suspended and remaining ones, in relation to access to medicines in member states, especially in developing countries. A comparison between these provisions and corresponding provisions under TRIPs, references to other TRIPs-Plus FTAs and arguments surrounding their justifications will be incorporated. The evaluation of potential impact of such IPRs on widespread access to affordable medicines will be elaborated through various examples and studies including those in countries which are not members of CPTPP but have already introduced such TRIPs-Plus provisions into their domestic laws. Especially, such provisions also raise strong concerns in the context of the COVID-19 pandemic when governments are putting their priorities on developing safe and effective vaccines and treatment medicines used against the disease. Therefore, the question of whether such provisions would create obstacles to member states in utilizing flexibilities set out under TRIPs such as compulsory licensing, and prevent them from timely and proper access to pharmaceutical products used for COVID-19 will also be discussed. At the end, this thesis comes up with several suggestions regarding possible actions for the countries to consider in order to minimize the potential impact of such provisions, while considering the scenario of a re-opening of negotiation and lift of the suspension of these provisions.

Lee, Janice, ‘Note on COVID-19 and the Police Powers Doctrine: Assessing the Allowable Scope of Regulatory Measures During a Pandemic’ (2020) 13(1) Contemporary Asia Arbitration Journal 229–248
Abstract: The COVID-19 pandemic has caused severe disruptions not only to public health, but also to the global economy. In response, many States have enacted preventive control measures to curtail the spread of the virus, as well as rehabilitative measures aimed at protecting the economy. Due to the breadth, scope and (at present) uncertain duration of these measures, it is likely that these may result to investment claims from foreign investors whose investments have been severely affected. This Note will discuss one of the available defences to investment claims resulting from regulatory measures undertaken pursuant to public health, that of the doctrine of police powers. This doctrine recognises that reasonable governmental regulation does not result to compensable expropriation. This Note will further consider the challenges faced in the application of the police powers doctrine to the present pandemic situation.

Lo, Mao-Wei, ‘Legitimate Expectations in a Time of Pandemic: The Host State’s COVID-19 Measures, Its Obligations and Possible Defenses Under International Investment Agreements’ (2020) 13(1) Contemporary Asia Arbitration Journal 249–268
Abstract: The unprecedented COVID-19 pandemic has drastically changed the world we live in, and exerted negative impacts on business activities, including international trade and investments. In order to flatten the rocketing curve of confirmed COVID-19 cases, countries have implemented preventive measures such as restricting international travel, suspending almost all kinds of businesses, and even nationalizing certain products (e.g., masks) from private enterprises. While the purpose of these government actions is legitimate and reasonable—namely to protect public health—these profound and unprecedented measures will adversely affect both domestic and foreign companies’ managements and businesses. Under the protection of the international investment agreement (hereinafter ‘IIA’), the affected foreign investor is entitled to initiate the investment claim, asserting that the regulatory environment of the host state has been changed, or arguing that the host state is in breach of the commitments which have been made and constituted the foundation for the investments. And the host state might therefore be claimed to have failed to provide the fair and equitable treatment (hereinafter ‘FET’) required by the IIA. The tension between the host state’s COVID-19 measures and the foreign investors’ legitimate expectations hence arises.This article focuses on the legitimacy of host states’ COVID-19 measures and examines whether those measures, though creating regulatory changes in host states, impede foreign investors’ legitimate expectations and constitute a violation of FET under the IIA. Insomuch that the COVID-19 crisis seems to be unpredictable, this article argues that the protection of foreign investors’ legitimate expectations should not be unlimited, and the preventive measures implemented by host states should be respected, providing that the normative changes are in bona fide nature and proportionate. In addition, this article also proposes certain public health defenses which are available for host states to justify their COVID-19 measures and which should be considered by the arbitral tribunals. In short, it is hoped that the findings and analysis of this article can offer a different angle to understand the scope of the foreign investors’ legitimate expectations and more broadly, host states’ FET obligation in a time of pandemic.

Loizou, Soterios, ‘UNIDROIT: Tackling COVID-19 through Private Law’ (SSRN Scholarly Paper ID 3796991, 3 March 2021)
Abstract: The outbreak of the COVID-19 pandemic has exposed humankind to a global health crisis unprecedented in its scope and impact. The pandemic struggle, however, is not limited to our biological survival; it extends to preserving our cultural and growth achievements by avoiding an economic catastrophe on both global and regional levels. Nevertheless, only a few narrow measures have been taken to restore the equilibrium in affected business relationships. This lack of rigorous regulatory intervention raises the question of whether private law regimes can fairly cope with the effects of the pandemic on international trade. Attempting to answer this enquiry, this paper explores the role of the Institute for the Unification of Private Law (UNIDROIT) in tackling the effects of the COVID-19 pandemic. The study comprises three parts, which correspond to: i. the successful resolution of disputes and the salvage of existing business relationships, ii. the reinstatement of trust and the creation of new opportunities in international trade, and iii. the promulgation of private law mechanisms that foresee such crises and allocate the burden of such major events between the parties.

Mariani, Paola, ‘Export Control and Measures Affecting Trade in Goods in Global COVID-19 Crisis: The Emergence of Sanitary Protectionism in the European Union’ (SSRN Scholarly Paper ID 3901944, 2 July 2021)
Abstract: One of the side effects of the COVID-19 crisis is the resurgence of export restrictions. Many States worldwide adopted temporary restrictions on exports of certain medical goods and some foodstuffs to mitigate actual or potential shortages of critical supplies. 98 States out of 130 adopted temporary measures affecting trade since the outbreak of the pandemic in 2020. The measures range from export bans to licensing requirements and the right of first refusal for the exporting country’s government. The high number of States adopting some form of export control concerning the so-called ‘COVID goods.’ entails exploring the phenomenon to understand better the legitimacy of the measures in the multilateral framework of the WTO and their impact on the global trading system. The practice of the European Union in this matter is particularly interesting. The EU was one of the first regional areas heavily hit by the COVID-19 and its Member States among the first nations adopting export control measures. At the very beginning of the pandemic, some EU member States adopted export restrictions affecting intra-EU trade. The risk of a race to close the borders to essential goods in the internal market, a heavily integrated space, urged the Commission to take action to preserve the integrity of the single market and the free movement of goods, introducing a mechanism of control of exports of COVID goods to non-EU countries as a quid pro quo for the ’full and effective lifting of all forms of internal bans or restrictions within the internal market. The EU Member States briefly experienced the freedom to adopt export restrictions at the pandemic’s beginning unilaterally. Then, thanks to a political agreement between them and the Commission, the limitations in adopting export control measures according to a uniform export authorisation scheme regulated and supervised by the Commission. This paper aims at studying the export control regime for COVID-19 vaccines adopted by the EU at the end of January 2021 and still in place at the time of writing. The case of restrictions in the trade of vaccines is particularly interesting considering the quite unanimous consensus in the international community that to bring this pandemic to an end, vaccines must be available to people in all countries and not just in producer ones. Restrictions on the trade of vaccines aim at protecting the population of the producer countries adopting them, but at the same time leaving alone the countries without vaccine production capacity means to delay the recovery for all. Furthermore, vaccine production is highly specialised and concentrated in few countries; keeping markets open is a condition to distribute vaccines broadly. The EU export control regime will be analysed and compared with the export control policies adopted by other major producers of the COVID-19 vaccines to assess its impact on the global distribution of such vaccines.

Meyer, Timothy, ‘Trade Law and Supply Chain Regulation in a Post-COVID-19 World’ (2020) 114(4) American Journal of International Law 637–646 (pre-published as Vanderbilt Law Research Paper No 20-38)
Abstract: This Essay argues that trade agreements may overly constrain the ability of states to regulate supply chains for critical products such as medical supplies. Free trade agreements (FTAs) may exacerbate supply chain concentration, especially through loose rules of origin. And WTO rules constrain preventative regulation of supply chain risks designed to prevent a crisis, while providing exceptions for aggressive action only in the face of a crisis. Thus, WTO members risk flouting WTO rules if they do not limit aggressive, preventative supply chain regulation.

Minenna, Marcello, ‘A Look at EU-UK Trade Relations in Light of Brexit, Pandemic and the Trade and Cooperation Agreement’ (SSRN Scholarly Paper ID 3823333, 9 April 2021)
Abstract: A few months after the UK definitive departure from the EU, this work offers a comprehensive analysis of the trade relations between the two Parties and of their future perspectives in light of the scenario disclosed by the COVID-19 pandemic and by the Trade and Cooperation Agreement (TCA). The analysis highlights the deep commercial links between the two areas, characterized by the juxtaposition between the EU’s large surplus in goods trade and the UK’s dominance in the exchange of services. The outcome of the 2016 referendum had a modest impact on trade between the two blocs, although on both sides of the Channel a process of adaptation to the new setting is ongoing since several years also through the research for new trading partners. The TCA represents a good result compared to the dreaded alternative of a no deal, but a reduction in business at the EU-UK border seems still inevitable. On the one hand, goods producers and traders now have to comply with product-specific rules of origin to be exempted from duties: additional costs and efforts will be therefore needed to deal with customs red tape and to re-arrange production systems and supply chains. On the other hand, the vagueness of the TCA provisions on trade in services leaves crucial issues unsettled, as in the case of equivalence determinations. The overall picture looks more favorable to the EU than the UK, but the medium-to-long term effects on both Parties will mostly depend on their willingness and ability to restore a climate of mutual confidence and cooperation.

Munevar, Daniel and Grygoriy Pustovit, ‘Back to the Future: IMF Article VIII Section 2 (B): A Sovereign Debt Standstill Mechanism’ (SSRN Scholarly Paper ID 3596926, 9 May 2020)
Abstract: This article provides a proposal to use IMF Article VIII, Section 2 (b) to establish a binding mechanism on private creditors for a sovereign debt standstill. The proposal builds on the original idea by Whitney Deveboise (1984). Using arguments brought forward by confidential IMF staff papers (1988, 1996) and the IMF General Counsel (1988), this paper shows how an authoritative interpretation of Article VIII, Section 2 (b) can provide protection from litigation to countries at risk of debt distress. The envisaged mechanism presents several advantages over recent proposals for a binding standstill mechanism, such as the International Developing Country Debt Authority (IDCDA) by UNCTAD and a Central Credit Facility (CFF) by the Bolton Committee. First, this approach would not require the creation of new intergovernmental mechanisms or facilities. Second, the activation of the standstill mechanism can be set in motion by any IMF member country and does not require a modification of its Articles of Agreement. Third, debtor countries acting in good faith under an IMF program would be protected from aggressive litigation strategies from holdout creditors in numerous jurisdictions, including the US and the UK. Fourth, courts in key jurisdictions would avoid becoming overburdened by a cascade of sovereign debt litigation covering creditors and debtors across the globe. Fifth, private creditors would receive uniform treatment and ensure intercreditor equality. Sixth and last, the mechanism would provide additional safeguards to protect emergency multilateral financing provided to tackle Covid-19.

Peari, Sagi and Saloni Khanderia, ‘Party Autonomy in the Choice of Law: Some Insights from Australia’ (2021) 42(2) Liverpool Law Review 275–296
Abstract: The party autonomy doctrine represents a very central component of international commerce. According to this doctrine, the parties to an international contract have the freedom to determine the applicable law to govern their dispute. Thus, party autonomy becomes a significant doctrine that affects the nature and effect of cross-border commercial transactions. Furthermore, the doctrine plays a crucial role in addressing the legal challenges caused by the outbreak of the COVID-19 and the growing volume of online commerce that COVID-19 reality has enhanced. By taking Australia as a case study for the party autonomy doctrine, we explore the essential aspects of the doctrine and contemplate on what the future of this doctrine holds for businesses and consumers.

Pelc, Krzysztof, ‘Can COVID-Era Export Restrictions Be Deterred?’ (2020) 53(2) Canadian Journal of Political Science/Revue Canadienne de Science Politique 349–356
Abstract: The COVID-19 pandemic has led some 75 countries to restrict their exports of hundreds of essential products, ranging from antibiotics and face masks to medical ventilators. Since banning exports decreases global supply and leads to price surges on world markets, the cost of these measures may ultimately be counted in human lives. Yet the multilateral trade regime lacks effective legal disciplines on export restrictions. In response, scholars have pinned their hopes on the prospect of potential retaliation working as a deterrent. Are such hopes warranted? Early evidence suggests not: the threat of retaliation cannot effectively deter most export controls, because the most flagrant country users are also shielded by the very characteristics that render them prone to imposing export restraints in the first place. The empirical evidence indicates the prospect of retaliation has played no role in the decision to restrict exports by the world’s biggest exporters of essential medical goods. Yet autarky is unlikely to be a workable solution to assure domestic supply. I suggest that attempts at limiting market consolidation of essential goods may be one way of reducing the incentive to implement export controls in the first place.

Petri, Peter A and Michael G Plummer, ‘East Asia Decouples from the United States: Trade War, COVID-19, and East Asia’s New Trade Blocs’ (Peterson Institute for International Economics, Working Paper No 20–9, 11 June 2020)
Abstract: The deepening US-China trade war and nationalist reactions to the COVID-19 pandemic are reshaping global economic relationships. Alongside these developments, two new megaregional trade agreements, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership (RCEP), will refocus East Asia’s economic ties in the region itself. The new accords are moving forward without the United States and India, once seen as critical partners in the CPTPP and RCEP, respectively. Using a computable general equilibrium model, we show that the agreements will raise global national incomes in 2030 by an annual $147 billion and $186 billion, respectively. They will yield especially large benefits for China, Japan, and South Korea and losses for the United States and India. These effects are simulated both in a business-as-before-Trump environment and in the context of a sustained US-China trade war. The effects were simulated before the COVID-19 shock but seem increasingly likely in the wake of the pandemic. Compared with business as before, the trade war generates large global losses rising to $301 billion annually by 2030. The new agreements offset the effects of the trade war globally, but not for the United States and China. The trade war makes RCEP especially valuable because it strengthens East Asian interdependence, raising trade among members by $428 billion and reducing trade among nonmembers by $48 billion. These shifts bring regional ties closer to institutional arrangements proposed in the 1990s and incentivize greater cooperation among China, Japan, and South Korea.

Pinchis-Paulsen, Mona, ‘Thinking Creatively and Learning from COVID-19: How the WTO Can Maintain Open Trade on Critical Supplies’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020)
Abstract: Extract from Introduction: Over a matter of days, governments became reflexively nationalist in responding to COVID-19. Several emergency powers and orders were ignited. Global Trade Alert found that, as of 21 March 2020, 54 governments had introduced export restrictions on medical supplies… These developments present a fresh threat to the world trading system. Was any of this legal?

Qerimi, Qerim and Bruno S Sergi, ‘Let’s Lessen Conditionality in Times of Force Majeure Events: The Archaic Righteousness of the Policy of Conditionality of International Institutions amid COVID-19’ (2021) 58 Research in International Business and Finance Article 101459
Abstract: This article investigates how international decision-making’s conditionality aids countries during strenuous economic conditions imposed by the COVID-19 pandemic. It examines and contrasts the European Union’s conditionality policies, the International Monetary Fund, and the World Bank as the more influential and leading groups of institutions. The article reveals notable policy differences. As opposed to that of the IMF and WB, the EU’s approach is more comprehensive and not confined to economic considerations. Those variations aside, the article draws on the same premise: expectations of compliance with the set conditions. While in-depth, structural requirements could guide ordinary decision-making and build up resilient national institutions and policies, this article questions the merits of large-scale comprehensive terms in the face of a situation created by a force majeure or a humanly uncontrollable event such as the COVID-19 pandemic. With no more initial research addressing the specific question of the application and adequacy of conditionality to force majeure emergencies or pandemic situations of the scale of COVID-19, this article argues in favor of a measured and targeted response limited to the development, design, or determination of policy choices that tackle the intended purpose. Also, for validly practical considerations that search for to ensure the better use of aid and avoid distracting or overburdening the recipient countries to the point of risking losses of devastating proportions, the article proposes to revise and limit conditionality during force majeure events to the essential aspects of transparent management of funds for the sole intended purpose. This in itself is a distinct democratic exercise of efficient and accountable public management decision-making.

Ranald, Patricia, ‘COVID-19 Pandemic Slows Global Trade and Exposes Flaws in Neoliberal Trade Policy’ (2020) 85 Journal of Australian Political Economy 108–114
Abstract: Both the World Trade Organisation (WTO) and the United Nations Conference on Trade and Development (UNCTAD) are forecasting dramatic falls inboth global trade and investment, which parallel predicted falls in economic growth resulting from shutdowns and disruptions to global production chains that began in March 2020.

Ranjan, Prabhash, ‘Compulsory Licences and ISDS in Covid-19 Times: Relevance of the New Indian Investment Treaty Practice’ (2021) 16(7) Journal of Intellectual Property Law & Practice 748–759
Abstract: Foreign investors are increasingly making use of investor-State dispute settlement (ISDS) to enforce their intellectual property rights. In this context, and taking into account the significance of compulsory licences (CLs) as a regulatory tool to fight the Covid-19 pandemic, this article studies India’s new investment treaty practice on the issuance of CLs. The article finds that India’s new investment treaty practice elucidates how India can issue CLs without worrying about investor-state dispute settlement claims.

Ranjan, Prabhash, ‘COVID-19, India and Indirect Expropriation: Is the Police Powers Doctrine a Reliable Defence?’ (2020) 13(1) Contemporary Asia Arbitration Journal 205–228
Abstract: Like several countries, the global pandemic, COVID-19, has hit India quite badly. In order to stop the spread of the disease, India has imposed a stringent national lockdown. It may adopt several other regulatory measures in future. This paper examines that if foreign investors bring Investor-State Dispute Settlement (hereinafter ‘ISDS’) claims against India under different bilateral investment treaties challenging Indian COVID-19 related regulatory measures as indirect expropriation, will India be able to defend its regulatory measures by invoking the police powers doctrine. The police powers doctrine is recognised by several ISDS tribunals. However, ISDS tribunals differ on the actual scope of this doctrine when assessed in relation to the effect a regulatory measure may have on foreign investment. This paper argues that while India can rely on the police powers doctrine, its actual working in a case will depend on arbitral discretion. To have a better chance at defending its COVID-19 related regulatory measures as part of State police powers doctrine, India should ensure that exercise of its regulatory measure is not excessive or disproportionate.

Ranjan, Prabhash and Pushkar Anand, ‘Covid-19, India, and Investor-State Dispute Settlement (ISDS): Will India Be Able to Defend Its Public Health Measures?’ (2020) 28(1) Asia Pacific Law Review 225–247
Abstract: The Coronavirus Disease 2019 (Covid-19) pandemic has forced States to adopt a number of regulatory responses, which, in turn, could negatively impact foreign investors. Thus, many apprehend that foreign investors might bring investor-State dispute settlement (ISDS) claims against States under different bilateral investment treaties. The Covid-19 pandemic has badly affected India, forcing India to adopt a national lockdown to slow down the spread of the disease. The lockdown ran for several weeks bringing a large range of economic activities to a grinding halt. In this context, this article argues that if ISDS claims are brought against India, India will be able to defend its Covid-19 regulatory measures under the treaty defences given as part of the non-precluded measures provision and as an exception to the expropriation provision. Further, India will also be able to rely on the police powers doctrine emanating from customary international law. Given the scale of the pandemic, the tribunals should grant substantial deference to India while adjudicating upon its Covid-19-related regulatory measures.

Sisco, Jordan, ‘Puerto Rico’s Debt: Still Foreign in a Domestic Sense’ (2021) Journal of Law and Politics (forthcoming)
Abstract: Puerto Rico, an unincorporated U.S. territory containing over three million American citizens, is suffering from a humanitarian and economic disaster unparalleled in United States history. After a decade of economic recession, Puerto Rico declared that its debts could not be repaid, setting the stage for the largest debt restructuring in U.S. history. In addition, the Caribbean island has been frequently assailed by natural disasters, including the recent COVID-19 pandemic. In response to the Commonwealth’s economic crises, Congress passed PROMESA in 2016 to establish an Oversight Board to oversee the restructuring process and to reform core government processes. The Board’s task is to help Puerto Rico achieve fiscal responsibility and regain access to the capital markets. This solution, however, is unprecedented, and has faced numerous and ongoing constitutional challenges. Most recently, the Oversight Board overcame an existential challenge under the Appointments Clause. In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, the Supreme Court upheld the Board’s constitutionality, but in so doing, reminded Puerto Ricans that they in effect remain foreign in a domestic sense to the United States. In this vein, this Note addresses the antecedents of Puerto Rico’s economic collapse, its ongoing territorial relationship with the United States, and discusses the extent to which the island’s economic collapse and quasi-sovereign debt restructuring are tied directly to this pseudo-colonial relationship.

Sykes, Alan O, ‘Short Supply Conditions and the Law of International Trade: Economic Lessons from the Pandemic’ (2020) 114(4) American Journal of International Law 647–656 (pre-published version of article available on SSRN)
Abstract: The COVID-19 pandemic has been accompanied by shortages and potential shortages of products critical to the public health response. Many nations have responded with export restrictions on these products, restrictions that are permitted under international trade law as a temporary response to short supply conditions generally and to public health emergencies in particular. This Essay argues that such export restrictions are economically counterproductive from a global efficiency perspective, and that governments acting unilaterally will nevertheless employ them due to international externalities that propagate through the ‘terms of trade.’ This observation raises a puzzle as to why international law should facilitate rather than curtail them. The most plausible answer is that legal authority for such measures is a politically necessary ‘escape clause’ in trade agreements, akin to safeguard measures.

Trujillo, Elizabeth, ‘An Introduction to Trade and National Security: New Concepts of National Security in a Time of Economic Uncertainty’ (2020) 30(2) Duke Journal of Comparative & International Law 211–222
Abstract: Within the context of enhanced rhetoric about the need for national security measures to protect domestic economic interests, the Duke Journal of Comparative & International Law hosted a Symposium on National Security and Trade Law in which speakers raised questions as to not only what is meant by national security today, but also the significance of invoking national security exceptions in trade. This Introduction provides an overview of issues discussed as well as some reflections on the use of the national security exception in trade during a time when nations are moving away from international cooperation towards unilateralism and facing global crises such as the COVID-19 pandemic. With the World Trade Organization’s recent panel decision, Russia—Measures Concerning Traffic in Transit , the international community received some guidance as to the limited use of this exception under GATT Article XXI and the need for good faith by nations invoking it, but larger questions remained as to its applicability in the context of economic insecurity and in the context of broader global challenges such as cybersecurity and climate change. Furthermore, with the current dysfunction of the Appellate Body of the WTO, there is no central adjudicatory body to address these issues in a systematic fashion, leaving it up to the nations or ad hoc adjudicatory processes to decide, rendering the multilateral trade framework an even more fragmented system. New ways of imagining the role of trade in the context of global and economic crises are needed, as well as more resilient institutional frameworks that can adapt to future forms of insecurity and allow for varied, constructive forms of dialogue among nations.

Wakil, Omar, Dany H Assaf and Linda M Plumpton, ‘COVID-19’s Impact on Competition Enforcement and Foreign Investment Reviews in Canada’ (2020) 1 Emerging Areas of Practice Series: COVID-19 (Coronavirus), Westlaw Canada
Abstract: The COVID-19 crisis is creating significant challenges for the Competition Bureau and Canadian government as they review competitor collaborations and M&A activity.

Weerth, Carsten, ‘International Response to Covid-19: Initiatives and Declarations by the UN, WHO, WCO, WTO and Other Stakeholders on World Trade, Customs Law and Solidarity in a Human Emergency’ (2020) 1(3) Lex Humanitariae 9–21
Abstract: The worldwide spread of the SARS-CoV-2 virus from Wuhan, Hubei province, China, in 188 countries (according to WHO figures: 216 countries, territories and economic areas) represents an unprecedented threat to Global Health and Global Trade in the times of Globalization. The virus triggers COVID-19 (Coronavirus disease 2019), which can range from a symptom-free course to severe respiratory syndrome (pneumonia) and affect other organ systems as well. More than 10 million persons were infected worldwide in the end of June 2020, more than 500,000 persons die from COVID-19 (as of 30 June 2020) – a truly global pandemic spread. The United Nations (UN), World Health Organization (WHO), The Food and Agricultural Organization of the UN (FAO), World Trade Organization (WTO), World Customs Organization (WCO) and its stakeholders and partners have in the light of the global COVID-19 pandemic joined forces and developed joined trade policies and legal approaches and declarations in order to combat the social and economic impact COVID-19. This paper gives an overview of the initiatives and different approaches and sorts them in different categories: (Joint) Declarations, Lists / Databases, Reports, Guidance, Warnings and Press Releases.

Weidemaier, W Mark C and Mitu Gulati, ‘Necessity and the Covid-19 Pandemic’ (2020) 15(3) Capital Markets Law Journal 277–283
Abstract: Key pointsAs the global economic downturn from the coronavirus worsens, many sovereign debtors will have to choose between paying creditors and fighting the virus.Official sector creditors have taken steps to grant relief to the poorest nations, but there is little sign that private creditors will coordinate to voluntarily grant relief.Customary international law, through the rarely applied doctrine of ‘necessity’, may provide sovereign debtors with some respite. This doctrine allows sovereigns to temporarily delay performance of international obligations when necessary to mitigate a grave and imminent danger to the populace.

Wu, Hsien, ‘WTO Dispute Settlement in the Wake of Coronavirus Disease 2019 (COVID-19): Exploring the Possible Benefits and Limits of Contemporary Mechanisms’ (2020) 13(1) Contemporary Asia Arbitration Journal 291–312
Abstract: Coronavirus Disease 2019 (COVID-19) is a newly discovered disease that has now become a global emergency, not just threatening the life and health of many, but also having significant adverse impact on the World Trade Organization (hereinafter ‘WTO’) legal order due to the response measures enacted by WTO members. However, many governments do not seem to consider the WTO dispute settlement system to be a viable forum for resolving disputes due to the new challenges posed by this epidemic. Based on the design of the dispute settlement system as seen today, this Article identifies a series of factors, including two benefits that the system can provide and four adverse issues that may undermine the system’s effectiveness. This Article hopes that these factors will provide guidance to WTO members on whether to present a dispute to the WTO.

Zelinger, Tyler, ‘A Silver Lining: An Italian Debt Restructuring in the Wake of COVID-19’ (SSRN Scholarly Paper ID 3626373, 13 June 2020)
Abstract: As the global economy has become more integrated and increasingly complex, the need for a system that administers government default has become more and more apparent. The body of ‘sovereign debt law’ that has emerged to fill this need in the context of the Eurozone is an amalgamation of treaty obligations, domestic law constitutional principles, and tensions between state government and supranational government actors. Using a hypothetical Italian restructuring, this paper seeks to explore how these different bodies of law operate together to create a system that protects government function as opposed to guaranteeing creditor recovery. Further, this paper explores how an exogenous shock as the COVID-19 pandemic effects the analyses undertaken at various points in the sovereign debt legal framework. This analysis reveals a silver lining: although Italy has suffered horrible losses as the result of the COVID-19 pandemic, the effects of the pandemic will help mitigate the legal challenges faced by Italy in the course of a local-law restructuring effort and thus smooth the path to a successful post-COVID recovery.

International Arbitration

Adolf, Huala, ‘The Impact of Pandemic on Legal System: Impact on Arbitration Law’ (2020) 13(2) Indonesian Law Journal 137–150
Abstract: One of the impacts of the outbreak of COVID-19 is the state legal system. Legal system in a broad sense consists of legislation, the state’s legal personnel (executive) and the judicial system. A part of the judicial system is a private settlement of dispute by arbitration. Arbitration is subject to the arbitration law. The COVID-19 has forced the closure of the arbitration proceedings. This is a problem for arbitration. This article tried to analyse the possible solution to the closure of the proceedings. This article used the normative method by analysing the existing arbitration law and arbitration rules. This article argued, although arbitration may not be able to be commenced amid pandemic, that future arbitration law (and amendment of existing arbitration law) should foresee feasible events with a smaller ”pandemic”, i.e., epidemic and other force-majeure related events. This article recommended firstly, the introduction of provision(s), which recognizes virtual arbitration. Secondly, changes of some procedural issues in the arbitration proceedings.

Bashayreh, M, ‘The Autonomy of Arbitrators: A Legal Analysis of the Validity of Arbitrator-Imposed Virtual Hearings in Response to the Covid-19 Crisis’ (2021) 24(1) International Arbitration Law Review 75–91
Abstract: Arbitration may be frustrated by supervening events, such as lockdown measures implemented due to the COVID-19 breakout, rendering agreed on procedures inoperative. Theoretically, a question arises as to whether arbitrators may adjust the parties’ agreement, if the parties fail to agree on alternative rules, while one party asserts its right to arbitrate. This article argues that arbitrators have autonomy by which they may adjust an arbitration agreement to avoid frustration. The autonomy of arbitrators vis. the parties is based on the parties’ duty to co-operate in good faith and contractual principles concerning the relationship between the parties and the arbitrators, including the severability of ineffective elements of the arbitration agreement. This view is supported, explicitly or impliedly, by arbitration rules and laws. The autonomy of arbitrators fortifies the autonomous theory of arbitration, whereas legal solutions are improvised through implied terms in the arbitration agreement that harmonise with the purpose of commercial arbitration. As a practical and legal illustration, the legality of procedures that arbitrators may impose to mitigate the impact of COVID-19, deviating from impractical agreements, is discussed. The article argues that adjusting an arbitration agreement would not invalidate the award if the principles of due process are fulfilled.

Chaisse, Julien, ‘Both Possible and Improbable: Could COVID-19 Measures Give Rise to Investor-State Disputes?’ (2020) 13(1) Contemporary Asia Arbitration Journal 99–184
Abstract: This Article explores the role of investment law and investment arbitration in (and after) the COVID-19 crisis in the context of transnational health policy. This Article discusses a technical possibility (COVID-19 measures can give rise to investor-state disputes) and explains why most of these claims will probably not be successful (most COVID-19 measures are covered by international defenses). Through a comprehensive survey of measures adopted across 50 jurisdictions, the Article shows that most of these measures are in line with the World Health Organization regulations. Furthermore, these domestic measures could be subject to a number of international law exceptions, allowing States to justify the potential violations. Nevertheless, the Article identifies a minority of measures that may have the potential to lead to successful claims. Paradoxically, the most problematic measures (such as taxation measures and sovereign debt increase) only indirectly address the pandemic.

Clift, Noel Rhys, ‘The Impact of COVID-19, Facilitative Mediation, Early Intervention and the New on-Line Visual ODR- Part 2’ (2021) 27 The Journal of International Maritime Law 189–203 (pre-print)
Abstract: THE COVID-19 pandemic has had widespread effects, notably on dispute resolution, on mediation practice and on court practice. Much of the change has the appearance of permanence. This is the second of two articles on this topic. The first touched on the pandemic and then looked in some depth at certain aspects of Facilitative Mediation (FM). This second article, by way of comparison, now addresses first Early Intervention (EM), a new form of mediation, and then the new Visual ODR, that is FM and EI on-line. These two articles can be read separately but are designed as a coherent whole.Introduction: This is the second of two papers published at the point of consolidation of a revolutionary new step in ADR, at a particularly striking moment, the British Government having, as at 19th July 2021, lifted substantially all formal, domestic restrictions imposed to curtail the spread of COVID-19. Facilitative Mediation (FM) has progressively become the dominant form of alternative dispute resolution (ADR) process in the UK and more widely aboard. FM is now probably the dominant form in major international disputes and the principal form of ADR chosen by the International Chamber of Commerce in Paris. The main reason is that it works, cases settle, problems are solved. The first paper was principally directed to that process.Early Intervention (EI), sometimes referred to as Early Intervention Mediation, is a new form of mediation. It has evolved from the original concepts that have made facilitative mediation so successful, but with differences that can prove useful, in particular cases. It offers a wide range of methods to reach consensus and settlement. This second paper now sets out, in fairly short form, some of the essential features of EI.Online Dispute Resolution (ODR) has existed from some point after the launch of the internet and widespread use of email, from about 1999 onwards. Software systems now offer the opportunity to conduct both traditional mediation and early intervention remotely, in a manner that broadly replicates the original concept in each case, but in a radical new way, as a new and enormously enhanced form of Visual ODR. This change has occurred with staggering rapidity. The COVID-19 pandemic and technology have made on-line mediation, and on-line EI, both a necessity and a credible, workable and effective new normal. This second paper in large part also deals with this new Visual ODR.At the end of this paper there are conclusions that touch on the material covered in both the first and second paper. Before turning to the main themes, this article looks very briefly at the nature of change and at dissonance between problems that become disputes, on the one hand, and the usual timetable for their resolution by formal process, on the other.

Eidenmueller, Horst and Faidon Varesis, ‘What Is an Arbitration? Artificial Intelligence and the Vanishing Human Arbitrator’ (SSRN Scholarly Paper ID 3629145, 17 June 2020)
Abstract: Technological developments, especially digitization, artificial intelligence (AI), and blockchain technology, are currently disrupting the traditional format and conduct of arbitrations. Stakeholders in the arbitration market are exploring how new technologies and tools can be deployed to increase the efficiency and quality of the arbitration process. The COVID-19 pandemic is accelerating this trend. In this essay, we analyze the ‘Anatomy of an Arbitration’. We argue that, functionally, fully AI-powered arbitrations will be both technically feasible and should be permitted by the law at some point in the future. There is nothing in the concept of an arbitration that requires human control, governance, or even input. We further argue that the existing legal framework for international commercial arbitrations, the ‘New York Convention’ (NYC) in particular, is capable of adapting to and accommodating fully AI-powered arbitrations. We anticipate significant regulatory competition between jurisdictions to promote technology-assisted or even fully AI-powered arbitrations, and we argue that this competition would be beneficial. In this competition, we expect that common law jurisdictions will enjoy an advantage: machine learning applications for legal decision-making can be developed more easily for jurisdictions in which case law plays a pivotal role.

Fang, Yuan and Yan Wang, ‘Online Dispute Resolution under COVID-19: The Practice of Major Arbitral Institutions in China’ in COVID-19 and International Economic Law: China and a Changing World (Academy Publishing, forthcoming, 2022)
Abstract: The outbreak of COVID-19 pandemic imposes severe impacts on people’s economic, cultural and social life. In light of dispute resolution, the requirement for social distancing challenges the traditional form of dispute resolution, whereas promotes the implementation of ODR. As a vital component of ODR, online arbitration has been evolving rapidly in China and the rest of the world. The major Chinese arbitration institutions, CIETAC, BAC, SCIA and CMAC, act proactively in response to the challenges arise from COVID-19. Examining the practice of the major Chinese arbitral institutions in accordance with online arbitration rules or provisional guidelines during COVID-19, there are both experiences already gained and lessons to be learned. On one hand, the major arbitral institutions in China obtained experiences through their practice in terms of online case filing, online exchanges of case documents, virtual hearing, partial award, etc.; on the other hand, however, they are also faced with the legal barriers with relevance to the legitimacy of virtual hearing and confidentiality of online arbitration. Compared with the jurisdictions beyond Mainland China with regard to their experiences in online arbitration during or prior to COVID-19, Chinese Arbitration Law is supposed to recognize the legitimacy of virtual hearing and assign less weight to the parties’ consent in the arbitral institution’s determination concerning virtual hearing; and the Chinese arbitral institutions are required to provide more protections related to confidentiality through measures for identity verification and information security.

Grigera Naón, Horacio A, ‘International Arbitration, Quo Vadis? (Arbitration and Mind Pandemics)’ (2021) 49(1) Georgia Journal of International & Comparative Law 83–98
Abstract: The article explores the pandemics of the mind that undermine the basis of human civilized existence and their effect on international arbitration. Topics discussed include Judge James Crawford’s remarks concerning the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, efforts of CETA member States to repossess investor-state arbitration, and the impartiality and independence of permanent dispute resolution bodies.

Harti Alonso, Munia El and Sophia Herbst, ‘The Rise of Investor-State Public Health Disputes: Lessons Learned from the Idiosyncrasy of Argentinian and NAFTA Cases in the Era of COVID-19’ (2021) 56 Revista Contexto (forthcoming)
Abstract: Argentina’s prominence in the history of ISDS makes for a seminal case study of the tension between state measures and FDI. Argentina, like other Latin American countries, has taken a proactive approach to mitigating the current pandemic. Notably, these emergency public health decisions may hinder FDI, thus leading to an increase in investment disputes. This paper aims to comparatively analyze the past Argentinian crisis and health related NAFTA cases, using lessons learned to provide guidance in anticipation of COVID-19 disputes. In order to explore this topic, a discussion of jurisdictional and procedural questions allow for a modern application of past issues.

Karton, Joshua, ‘The (Astonishingly) Rapid Turn to Remote Hearings in Commercial Arbitration’ (2021) 46(2) Queen’s Law Journal 399
pre-published article available on SSRN
Abstract: This article, a contribution to a Queen’s Law Journal symposium on the legal response to the COVID pandemic, considers the turn to remote hearings in commercial arbitration. It was written primarily for a non-specialist Canadian audience, but arbitration lawyers from any jurisdiction confronting these issues may find it valuable. Commercial arbitration, like litigation, was forced by the pandemic to resort to remote proceedings. The arbitration community had both the capacity and the motivation to go remote, and did so at remarkable speed. However, it is unclear how durable these emergency adaptations will be — are remote hearings a new normal, or a crisis response that will fade along with the pandemic? The author argues that remote hearings are indeed here to stay. The experience of commercial arbitration in 2020 shows that the cost and accessibility benefits provided by remote hearings are significant, and that most of the concerns either have practical fixes or evaporate with greater familiarity. Remote hearings neither will nor should become universal, but will likely be a default option in arbitration, especially for international disputes. Nevertheless, planning, vigilance, and a commitment to expend sufficient resources are needed to make remote hearings accessible, effective, and fair. The author concludes by listing five lessons that other forms of dispute resolution, in particular litigation, can learn from the experience of commercial arbitration during the pandemic: (i) attention to the technical setup is vital, (ii) the necessary infrastructure is not cheap and the costs are ongoing, (iii) remote hearings are not an all-or-nothing matter, (iv) their greater flexibility makes it possible to customize procedures for each dispute, and (v) frequent breaks are necessary.

Khanal, Sameep, ‘Suitability of Arbitration Act 1999 as Lex Arbitri Amid COVID-19’ (2020) 27(July) NEPCA Bulletin 34–37
Jurisdiction: Nepal
Abstract: Currently, world is reeling under the effect of Novel Coronavirus (the, ‘COVID-19’). The effect of COVID-19 has been felt across all sectors around the world. Due to the travel restrictions and limited mobility, the usual process of resolving dispute through onsite presence of the adjudicator/arbitrator and parties to the dispute has been rendered impractical. This has led arbitrators, arbitral institutions and legislators to identify novel method of conducting the proceedings and rendering the award. This article looks into the challenges of conducting arbitration of dispute between contracting parties pursuant to the Arbitration Act of Nepal, 1999. (the ‘Arbitration Act’). Firstly, this article will give brief outline of best practices adopted by arbitral institutions and states across various jurisdiction for facilitating arbitration during COVID-19. Secondly, it will identify the challenges faced by the parties for conducting arbitration pursuant to the Arbitration Act as lex loci arbitri on various aspects namely (a) limitation period (b)conducting proceedings and (c) rendering award due to COVID-19. Finally, this article shed light on the measures that may be necessary for expediting arbitration governed by the Arbitration Act as lex arbitri.

Kiraz, Ş Esra and Esra Yıldız Üstün, ‘COVID-19 and Force Majeure Clauses: An Examination of Arbitral Tribunal’s Awards’ (2020) Uniform Law Review Article unaa027 (advance article, published 29 December 2020)
Abstract: The coronavirus (COVID-19) pandemic has taken a toll on people all across the world in various aspects. The severe consequences of this pandemic can be seen in international trade and commercial contracts. The underlying principle of contract law is that the parties are bound by the promises given under an agreement; however, events such as COVID-19 affect the parties’ performance of contractual duties. The harsh measures, such as prohibition on importation and exportation of goods or travel bans, have seriously affected the parties’ performances. In such situations, force majeure clauses, which serve as an exemption from non-performance, come into play. This article aims to reveal how COVID-19 will be assessed in terms of force majeure and the possible attitudes of arbitral tribunals towards these cases. This assessment is undertaken in light of force majeure clauses laid under the Convention on Contracts for the International Sales of Goods, the Unidroit Principles of International Commercial Contracts, and the International Chamber of Commerce’s 2020 Force Majeure Clause.

Lee, Jaemin, ‘The Coronavirus Pandemic and International Investment Arbitration: Application of “Security Exceptions” Clauses in Investment Agreements’ (2020) 13(1) Contemporary Asia Arbitration Journal 185–204
Abstract: Many states are taking a variety of measures to cope with the unprecedented global threat arising from COVID-19. To the extent that these measures affect the interest of foreign investors, they could implicate various provisions of international investment agreements. In particular, the pandemic situation in 2020 raises the possibility of invoking national security exceptions clauses contained in recent investment agreements. Although it is still too early to judge, recent jurisprudence indicates that a bona fide measure to counter COVID-19 may constitute an instance to invoke security exceptions in investment agreements. At the same time, current security exceptions clauses are not detailed enough to deal with new types of national emergency such as pandemics. Nor have there been sufficient discussions so far to clarify and fine-tune the clauses. Keen attention having been paid to national security exceptions even before the pandemic is now signaling that the provision is likely to be invoked more actively and robustly in the investment context. Existing and future investment agreements need to revisit this provision to ensure it does not become a source of conflict or a carte blanche for treaty violations.

Lo, Alex, ‘Virtual Hearings and Alternative Arbitral Procedures in the COVID-19 Era: Efficiency, Due Process, and Other Considerations’ (2020) 13(1) Contemporary Asia Arbitration Journal 85–98
Abstract: Since January 2020, many national governments have implemented stringent measures to counteract the spread of COVID-19. An unintended side effect of these measures is the disruption to international arbitration proceedings, causing not only administrative and logistical complications, but also, in some cases, having substantive effects on the outcome of the case. In the midst of the restrictions imposed due to the global pandemic, tribunals and parties have been looking for ways to mitigate the disruption so that proceedings may continue, and disputes could be resolved in an efficient manner. In many cases, these alternative procedures and methods may well be an acceptable second choice. However, if the solutions are not tailored to the challenges presented by each arbitration, they may in fact present more issues than the problems they are attempting to solve. At minimum, it may create more inefficiencies and leave a mess for parties and tribunals to clean up after the dust settles. In more extreme cases, there may be a danger that parties may be deprived of a sufficient opportunity to be heard such that minimum due process requirements are not met.This article discusses the potential issues with respect to costs, efficiency, and due process arising from virtual or online hearings, documents-only proceedings and bifurcated proceedings.

Lo, Mao-Wei, ‘Legitimate Expectations in a Time of Pandemic: The Host State’s COVID-19 Measures, Its Obligations and Possible Defenses Under International Investment Agreements’ (2020) 13(1) Contemporary Asia Arbitration Journal 249–268
Abstract: The unprecedented COVID-19 pandemic has drastically changed the world we live in, and exerted negative impacts on business activities, including international trade and investments. In order to flatten the rocketing curve of confirmed COVID-19 cases, countries have implemented preventive measures such as restricting international travel, suspending almost all kinds of businesses, and even nationalizing certain products (e.g., masks) from private enterprises. While the purpose of these government actions is legitimate and reasonable—namely to protect public health—these profound and unprecedented measures will adversely affect both domestic and foreign companies’ managements and businesses. Under the protection of the international investment agreement (hereinafter ‘IIA’), the affected foreign investor is entitled to initiate the investment claim, asserting that the regulatory environment of the host state has been changed, or arguing that the host state is in breach of the commitments which have been made and constituted the foundation for the investments. And the host state might therefore be claimed to have failed to provide the fair and equitable treatment (hereinafter ‘FET’) required by the IIA. The tension between the host state’s COVID-19 measures and the foreign investors’ legitimate expectations hence arises.This article focuses on the legitimacy of host states’ COVID-19 measures and examines whether those measures, though creating regulatory changes in host states, impede foreign investors’ legitimate expectations and constitute a violation of FET under the IIA. Insomuch that the COVID-19 crisis seems to be unpredictable, this article argues that the protection of foreign investors’ legitimate expectations should not be unlimited, and the preventive measures implemented by host states should be respected, providing that the normative changes are in bona fide nature and proportionate. In addition, this article also proposes certain public health defenses which are available for host states to justify their COVID-19 measures and which should be considered by the arbitral tribunals. In short, it is hoped that the findings and analysis of this article can offer a different angle to understand the scope of the foreign investors’ legitimate expectations and more broadly, host states’ FET obligation in a time of pandemic.

‘Overcoming COVID-19: Critical Legal Pathways’ [2020] NZ Business + Management (Sp)12-(Sp)13
Abstract: Watch for liquidity or production roadblocks, emerging insolvency risk, and rating downgrades Trends to watch: • Willingness of overseas wholesale markets to fund NZ lenders • Difficulty of accessing overseas corporate bond markets • Continuing exchange rate hedging and counterparty risks • State liquidity measures focussing on domestic goals, rather than international liquidity and trade flows DISPUTES Insights: • Additional benefits (eg, flexibility, adaptability and enforceability) from international arbitration already in place in cross-border contracts • If commencing formal dispute, consider at outset whether final award or judgment will be enforceable against foreign assets Exporters & importers CROSS BORDER TRADE: Exporters & importers International goods + services contracts. [Extracted from the article]

Owolabi, Rotimi, ‘International Arbitration: Trends in Mitigating the Effect of COVID-19’ (SSRN Scholarly Paper ID 3803978, 2 November 2020)
Abstract: Essay examined how the international arbitration community have coped with the effects of the Coronavirus pandemic.

Rogers, Catherine A and Fahira Brodlija, ‘Arbitrator Appointments in the Age of COVID-19Journal of International Arbitration (forthcoming)
Abstract: The pandemic has disrupted the free movement of goods, shipping and transportation, construction and manufacturing projects. The result has been the breach, cancellation, or significant delay in contract performance. Around the world, regular judiciaries have suspended their activities during the global shut-down. Already some parties are turning to arbitration as an alternative, even if they did not have a pre-dispute agreement in place. In response, leading international arbitration organizations have adopted an extensive range special rules and guidelines for the parties and their counsel, which should help them adapt to the online hearings and other relevant procedural issues related to the arbitration. The one thing all these guidelines have in common is that they must be implemented by arbitrators who, in most instances, will have to be able to adapt their case management skills to address and incorporate these various sources. This book chapter examines these trends and their implications for arbitrator selection and the market for arbitrator services. One key trend will be the need for more data analytics about international arbitrators, such as now available through the legal tech innovation Arbitrator Intelligence.

Scherer, Maxi, ‘Remote Hearings in International Arbitration: An Analytical Framework’ (2020) 37(4) Journal of International Arbitration 407–448
Abstract: Remote hearings are nothing new, but the Coronavirus Disease-19 (COVID-19) crisis has forced international arbitration out of its comfort zone. Parties, counsel, and arbitrators must adapt to the new reality of conducting arbitrations in the face of travel restrictions and social distancing measures. One particularly thorny question is whether and to what extent physical hearings that cannot be held due to the above-mentioned restrictions should be postponed, or be held remotely, using modern communication technologies. The present article takes a step back from the immediate crisis and proposes an analytical framework for remote hearings in international arbitration. In the context of the current pandemic and beyond, it provides parties, counsel, and arbitrators with the relevant guidance on assessing whether to hold a hearing remotely, and if so, how to best plan for and organize it. The article also tests the risk of potential challenges to awards based on remote hearings, looking in particular at alleged breaches of the parties’ right to be heard and treated equally.

Scherer, Maxi, Niuscha Bassiri and Mohamed S Abdel Wahab (eds), International Arbitration and the COVID-19 Revolution (Kluwer Law International, 2020)
See pricing and ordering information for this book on the Kluwer website
Summary: International Arbitration and the COVID-19 Revolution’ is a timely book that elucidates and analyses how the COVID-19 crisis has redefined arbitral practice, with a critical appraisal of the pandemic's effects from well-known practitioners on substantive and procedural aspects from the commencement of proceedings until the enforcement of the award. The COVID-19 pandemic has deeply impacted all major economic sectors and industries and elicited profound and systemic changes in international arbitration. Moreover, the fact that entire proceedings are now being conducted remotely constitutes so significant a deviation from the norm as to warrant the designation ‘revolution’.

Shope, Mark, ‘The International Arbitral Institution Response to COVID-19 and Opportunities for Online Dispute Resolution’ (2020) 13(1) Contemporary Asia Arbitration Journal 67–84
Abstract: Although arbitral institutions have long provided for virtual interactions, the online dispute resolution dialogue has intensified due to the global COVID-19 situation. This reflection discusses arbitral institutional reactions to the global COVID-19 situation and specific arbitral institutional rules relating to virtual interactions, protocols, and other ODR standards.

Teramura, Nobumichi, Shahla F Ali and Anselmo Reyes, ‘Expanding Asia-Pacific Frontiers for International Dispute Resolution: Conclusions and Recommendations’ (University of Hong Kong Faculty of Law Research Paper No 2020/038, 1 July 2020) < >
Abstract: Asia’s emergence as a global economic powerhouse has corresponded with a prolonged upward trend in international commercial arbitration (ICA) cases involving Asian parties, as well as a belated expansion of investor-state dispute settlement (ISDS) arbitrations involving Asian states or investors. Further accelerating the eastward shift in international dispute resolution, various initiatives to improve support for ICA and ISDS have been taken and alternatives (such as international commercial courts and international commercial mediation) have been promoted. This book aimed to examine significant ‘new frontiers’ for Asia-Pacific cross-border business dispute resolution, focusing on major economies in East and South Asia and countries (such as Australia) that are closely linked economically and geographically. The principal questions posed were: (1) whether existing and new venues for ICA could improve their attractiveness through law reform, case law development, and other measures, despite worries about cost and delay; (2) whether emerging concerns about ISDS-backed investment treaty commitments would prompt Asian states to become rule-makers in international investment law, rather than be mere rule-takers; and (3) whether innovations in existing or new fields might assist the Asia-Pacific region to develop international dispute settlement further. The foregoing chapters have discussed these broad themes, focusing on developments in Australia, Japan, Hong Kong, China, India and Malaysia, while paying attention to broader regional initiatives (such as China’s Belt and Road Initiative (BRI)) and recent international instruments (such as the Singapore Convention on Mediation (entering in force from 12 September 2020 )). This concluding chapter highlights key findings in the individual chapters and identifies some challenges for the post COVID-19 era.

Wilske, Stephan, ‘The Impact of COVID-19 on International Arbitration: Hiccup or Turning Point?’ (2020) 13(1) Contemporary Asia Arbitration Journal 7–44
Abstract: COVID-19 had an immediate and significant impact on the practice of international arbitration. Nevertheless, arbitral institutions, arbitral tribunals, counsel and other participants learned quickly how to deal with this new challenge. The crucial question is whether there will be long-term impacts by these COVID-19 experiences on international arbitration even once this pandemic is over. The spontaneous and probably correct answer would be ‘Yes’. Most probably, more elements of a typical arbitration that were based on physical presence will from now on occur contactless, i.e. in virtual reality. However, it is not only helpful but also necessary to identify which elements of international arbitration could easily take place in virtual reality and for which elements physical presence is and remains desirable or maybe even indispensable. In the end, COVID-19 will most probably speed up processes aimed at more efficiency that had already commenced prior to the outbreak of COVID-19, but will not change the core elements of international arbitration, i.e. the search for impartial and independent and—hopefully in most cases fair and just—decision-making in cross-border disputes through a voluntary and flexible process.

Wu, Hsien, ‘WTO Dispute Settlement in the Wake of Coronavirus Disease 2019 (COVID-19): Exploring the Possible Benefits and Limits of Contemporary Mechanisms’ (2020) 13(1) Contemporary Asia Arbitration Journal 291–312
Abstract: Coronavirus Disease 2019 (COVID-19) is a newly discovered disease that has now become a global emergency, not just threatening the life and health of many, but also having significant adverse impact on the World Trade Organization (hereinafter ‘WTO’) legal order due to the response measures enacted by WTO members. However, many governments do not seem to consider the WTO dispute settlement system to be a viable forum for resolving disputes due to the new challenges posed by this epidemic. Based on the design of the dispute settlement system as seen today, this Article identifies a series of factors, including two benefits that the system can provide and four adverse issues that may undermine the system’s effectiveness. This Article hopes that these factors will provide guidance to WTO members on whether to present a dispute to the WTO.

Yu, Hong-Lin, ‘“Business as Usual” During an Unprecedented Time: The Issues of Data Protection and Cybersecurity in International Arbitration’ (2020) 13(1) Contemporary Asia Arbitration Journal 45–66
Abstract: COVID-19 brought the world to a standstill, however arbitration is ‘business as usual’. This is also the expectation of the UK Courts and Tribunals Service (HMCTS) through the High Court’s decision in MillChris Developments Ltd v. Waters [2020] 4 WLUK 45. This article highlights the ‘business as usual’ approach adopted by the international arbitration community, in particular, institutional arbitrations carrying out remote hearings and meetings. A review of the Seoul Protocol on Video Conferencing in International Arbitration, the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration 2020, and the consultation draft of the ICCA/IBA Joint Task Force’s Roadmap on Data Protection in International Arbitration highlights the concerns of cybersecurity and data protection in light of COVID-19 and beyond.

This site is powered by FoswikiCopyright © by the contributing authors. All material on this collaboration platform is the property of the contributing authors.
Ideas, requests, problems regarding AustLII Communities? Send feedback
This website is using cookies. More info. That's Fine