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 and regional human rights law
- international courts
Abstract: The issue of Internally Displaced Persons (IDP) has been overshadowed by global attention on those who flee across an international border, recognized as refugees. In most cases, the only difference between IDPs and refugees is crossing an international border. This research examines the plight of (IDPs) from the perspective of international law and the additional vulnerabilities the Covid 19 pandemic brought them. The rapid growth of IDPs due to wars and disasters is concerning. Furthermore, the challenges for these already vulnerable IDPs are exacerbated by the Covid-19 global pandemic. The authority to regulate IDPs and their rights is left to the sovereign nations they reside in. However, sovereignty is also grounds for not intervening internationally. This research will critically review international and regional conventions, commentaries, and other legal materials to expose the black hole of legal protections for IDPs. Whether existing legal frameworks and international institutions effectively protect their rights. This research will thoroughly analyze primary sources to demonstrate: (1) the vulnerability of IDPs; (2) the international legal framework available for their protection; (3) international institutions that offer humanitarian relief to guarantee the respect of the rights of the affected population; and (4) the added challenges of IDPs during the Covid19 outbreak. (5) recommendations for the respect of human rights of IDPs. The research findings reveal the inconsistencies between the international rights granted to IDPs and their implementation.
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.
Achenbach, Jelena von, ‘The Global Distribution of COVID-19 Vaccines by the Public-Private Partnership COVAX from a Public-Law Perspective’ (2023) Leiden Journal of International Law (advance article, published online 08 May 2023) Abstract: This article examines COVAX, a public private partnership, from a public law perspective. It asks whether COVAX is a legitimate and appropriate instrument with regard to the goal of distributing COVID-19 vaccines in a globally equitable manner and enabling equal access to vaccination worldwide. By developing public-legal legitimacy standards for this purpose, the article critically distances itself from the outset from considering the use of private actors and forms of action in public functions (‘privatization’) essentially as a release of market economy rationality, which enables efficiency and effectiveness gains and relieves the public sector. With the public law perspective, the article questions precisely whether private-law, market-based action is appropriate with respect to the global distribution of vaccines in the pandemic.
Acosta-Navas, Juan Pablo, ‘International Humanitarian Law and COVID-19 in Colombia: The Construction of Peace in the Post-agreement and Post-pandemic Period’ (2022) 29(53) Ánfora 141–162 Abstract: IHL, beyond its legal-normative component, has great ethical and political potential to contribute to peace building in Colombia and thus strengthen the precarious exercise of citizenship deficient in contexts such as Latin America. The effects of the COVID-19 pandemic, despite its unpredictability, may constitute an opportunity to enhance the value and conditions of human life, and contribute to the construction of a more just and peaceful society based on the paradigm of imperfect peace.
Adebanjo, Adetoun and Ebenezer Durojaye, ‘International Human Rights Norms and Standards on Derogation and Limitation of Rights During a Public Emergency’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 79–109 Abstract: This chapter examines the principles relating to the derogation and limitation of rights during public emergencies. It discusses the position under international law and the United Nation human rights system, and thereafter under regional systems, namely the Inter-American, European and African systems. In the course of this, this chapter focuses on the relevant provisions of each regional human rights instrument, as well as on the clarifications by the regional human rights bodies. It also sets out the differences in approach by the regional human rights systems. In particular, it notes that the African human rights system differs from the others in that there is no derogation clause in the African Charter on Human and Peoples’ Rights. This chapter concludes that each of the regional human rights systems recognises the need to restrict rights during public emergencies, but stipulates that such restrictions must still accord with recognised human rights principles and standards.
Ahlborn, Christiane, ‘The Rule of Law and Good Governance at the United Nations during the COVID-19 Pandemic’ (2021) 18(3) International Organizations Law Review 397–422 Abstract: This contribution discusses how the United Nations (UN) adapted to the working conditions under the COVID-19 pandemic while respecting the rule of law and good governance at different levels. The article first examines what the rule of law means in the UN context. On this basis, the article then considers the different COVID-19-related emergency measures taken by the UN with a focus on four of the UN principal organs: the Secretariat, the Security Council, the General Assembly, and the International Court of Justice. Overall, the UN has succeeded in maintaining public trust, including the trust of its member states, in responding to and recovering from the COVID-19 pandemic because it continued to respect standards of good governance and the rule of law during the pandemic. Moreover, the UN has learned important lessons that will allow it to adapt even better to future emergencies.
Ajiboye, Oluseyi, ‘COVID-19: Assessing China’s Culpability through International Law’ (SSRN Scholarly Paper ID 3638678, 13 July 2020)
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, ‘The Case for Reparations for the Color of COVID’ (2022) 7(1) UC Irvine Journal of International, Transnational, and Comparative Law 7–59 Abstract: This Article surveys the data demonstrating that COVID-19, far from being the great equalizer, has generated starkly skewed adverse outcomes, including grossly disproportionate deaths, among persons of color in the U.S., Brazil, and India, and in all likelihood globally. The ‘color of COVID’ results from governmental actions and inactions that, when combined with long-standing socio-economic vulnerabilities, produce deadly results for certain groups. Global health reformers are not addressing these injustices. Like those who resist reparations for African-Americans, for the global victims of slavery, colonialism and its legacies, or for all of the current pandemic’s victims, those seeking to reform the WHO resist state responsibility or accountability for COVID. This Article argues that since, under international law, states owe a duty to provide remedies to persons within their jurisdiction who are denied fundamental rights because of de facto or de jure discrimination, there will be a substantial number of COVID-related claims presented in national courts and international venues, such as human rights courts and treaty bodies. States will face a choice between allowing judges to respond to actions or anticipating the most serious of them by establishing reparations mechanisms or commissions to address the color of COVID. As students of transitional justice can attest, there are advantages to doing both: allowing tort-like claims to proceed in judicial fora while establishing, at the national and possibly sub-national levels, mechanisms to enable contextually sensitive responses—from government apologies to forms of recompense. Intrastate reparations are more politically viable than interstate claims seeking to establish blame for the spread of COVID. National efforts to provide a measure of restorative justice to those harmed within each country by discriminatory practices are justified morally, legally, and from a utilitarian perspective. Bringing out the facts of the color of COVID and making states accountable may deter discriminatory actions (and inactions) that have furthered COVID-19 and its variants. Enabling accountability for the color of COVID can help mitigate the impact of future pandemics. Reparations would also advance the idea that all persons, irrespective of color of skin, have a basic right to life and health.
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.
Angkasari, Wildani and Andrey Sujatmoko, ‘Protection of Indonesian Fishermen from China’s Threat in the North Natuna Sea Region During the Covid-19 Pandemic’ (Proceedings, 3rd International Conference on Law Reform, 2022) 326–333 Abstract: The economic importance of the North Natuna Sea is premised not only on its function as one of the largest marine sources in Indonesia but also as an important location for the Indonesian military to conduct large-scale exercises. Amidst the ongoing outbreak of the COVID-19 pandemic, unauthorized fishing by Chinese flagged boats continues to be pervasive in the Indonesian EEZ off Natuna Islands. Chinese coast guard and military vessels were constantly and visibly present in those waters, testing the patience and perseverance of Indonesia’s authorities. The purpose of this article is to find out the cause related to the problem of protecting Indonesian fishermen in catching fish in the region. The Indonesian government is committed to ensuring rapid mobilization of its military and naval assets in the area when required to protect the fishermen. The method used in this research employed the qualitative method and critical content analysis. The legal consequences of ratifying the United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) with Law No. 17 of 1985 concerning the ratification of UNCLOS, Law No. 32/ 20014 concerning about the sea are the substance of law regulation. The type of data used is secondary data, namely data obtained through literature study. The study matches that Indonesia must develop fishermen with the spirit of defending the country, especially in areas where the waters are partially located within China’s nine-dash line.
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.
Asudemade, Habeeb, ‘COVID-19: Assessing China’s Culpability Through International Law’ (SSRN Scholarly Paper No 4413671, 11 August 2020) Abstract: Sequel to the global emergence of Coronavirus—officially named Covid-19 and originating from China—which has engulfed over 100 countries; thousands of people have lost their lives, millions have lost their livelihoods, and several economies have suffered acute disruptions. Therefore, this essay seeks to analyse China’s culpability for the spread of Covid-19. The essay examines this culpability under international law and, specifically, through the principle of state responsibility. It also considers the fundamental counterarguments against culpability, especially in the light of the general unwillingness of nations to point fingers. In the end, the author finds that while there are certain elements reflecting China’s culpability, the absence of definitive facts impedes a wholesome and air-tight culpability assessment.
Aziz, Jamal, Hira Arif and Noor Fatima Iftikhar, ‘The COVID-19 Law and Policy Challenge: The Future of Global Health Law and Pakistan’s Potential Role’ (2020) 2020 RSIL Law Review 95–125 Abstract: The management of the novel coronavirus has raised key questions regarding whether the international healrh law regime is able to adequately handle an outbreak of this magnitude. The structure and framework applicable to the international health law as well as the World Health Organization’s constitution will be explored in this paper. The criticisms heaped on to the WHO and this framework for being ineffective and unable to deal with this outbreak will be considered. The paper will also identify ways in which the regime may be improved to effectively counter pandemics and other health emergencies, and will contextualise this within the ambit of Pakistan.
Azizi, Sattar, ‘International Responsibility of States in Humanitarian Assistance: Emphasizing the Issue of the COVID-19 Pandemic’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: The outbreak of coronavirus, which first started in Wuhan province of China and infected the whole world in less than eleven weeks, has been one of the most important challenges to human health and safety since World War II. Although the main task of ensuring the health and minimum livelihood of human life is the responsibility of state and the place of human habitation, the various economic, social and health effects of the coronavirus on human life necessitate humanitarian assistance from all states. The main question of this article is whether there is a customary obligation for states to help each other in combating the spread of the coronavirus and its economic, health and social consequences? The author’s hypothesis is that there is a customary obligation for affluent states to assist vulnerable states in combating the Quaid-19 virus. In particular, the inability and failure of a state to fight the virus will lead to its proliferation and spread to neighboring states and beyond, and it is in the interest of all states not to limit the fight against the virus to their national and internal borders.
Azrae, Ahmad Nasyran et al, ‘Discrimination Against Migrant Workers During The Pandemic: Reassessing The Country’s Obligation Under International Law’ (2022) 7(4s) BiLD Law Journal 229–243 Abstract: Migrant workers have contributed significantly to the development of the Malaysian economic ever since their first arrival in the 1980s. Over the years, the migrant workers have faced constant discrimination and exploitation, and this unfortunate event has further escalated following the the widespread of the pandemic COVID-19. The imposition of the Movement Control Order (MCO) to curb the spread of COVID-19 had force many non-essential sectors were to hibernate and/or minimise their operations. The impacts from this measure were felt more by the migrant, vis-a-vis workers. They were significantly discriminated in their works, including facing job termination, salary cuts, forced leave, etc. Their premises were raided by the authority, which were seemed to be more focusing on criminalising undocumented migrant workers, as opposed to contain the spread of COVID-19. The acts of handling the migrant workers during the pandemic have drew immense criticism, especially from the human rights societies. Accordingly, this paper examines the legal obligation required under the international conventions and the national laws in the treatment of migrant workers with a view to analyse the possible discriminatory treatment committed by against the migrant workers during the pandemic. The study uses a conventional or traditional research methodology, looking at and discussing the pertinent legislation found in the primary data (such as international treaties and local laws) and other published works in the type of secondary data, such as articles, teaching materials, and periodicals. The study finds that discrimination is an area under the human rights law which the international communities seek to combat. Several key international treaties were signed to this effect. Whilst Malaysia chooses not to participate in few international conventions to curb discrimination, the absence of anti-discrimination law and explicit legal provisions on the subject matter has left lacunae and a vague legal position in Malaysia.
Baglayan, Basak, ‘Covid Stress Test for the Rule of Law: States of Emergency under International Human Rights Law’ in Braum, Stefan (ed), Experimental Law: The Rule of Law and the Regulation of the Corona Pandemic in Europe (Nomos, 2023) 65–86
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, ‘Epidemics and the Future of International Disaster Law’ (2022) 24(3) International Community Law Review 257–280 Abstract: This paper explores the relationship between epidemics and International Disaster Law. In particular the paper addresses some selective examples of legal and operational issues pertaining to International Disaster Law where the increasing concern on health emergencies, dated back to the Ebola crisis, have progressively facilitated the management of tailored initiatives. In particular, in relation to prevention and preparedness, challenges experienced to include biological hazards in universal disaster risk reduction frameworks will be introduced, as well as the dedicated attention to preparedness for epidemics progressively experienced in international coordination disaster management systems. In relation to post-hazard phases, some initiatives aimed at facilitating international relief operations in front of epidemics will be explored, as complemented by international financial instruments factoring epidemics in assistance programs. This overview might thus permit to assess some trends in this area, paving the way for potential further reforms eventually based on developments already introduced in the framework of 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.
Bäumler, Jelena and Julieta Sarno, ‘The Immunisation against COVID-19 as a Global Public Good’ (2021) 82(1) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 159–194 Abstract: In 2020, COVID-19 emerged and spread rapidly across the globe. Soon thereafter, the World Health Assembly (WHA) proclaimed the immunisation against COVID-19 a Global Public Good in its Resolution WHA 73.1. What the concept of Global Public Good (GPG) entails, both generally, and, in particular with respect to international law, are far from settled. This article aims to further develop an understanding of this concept and to frame its meaning in the context of immunisation against COVID-19. It argues that while the concept originated in economics, it carries normative value and has implications for different areas of international law. The Resolution concretises a duty to cooperate in the context of immunisation. Furthermore, it requires us to think beyond state borders as well as beyond states’ responsibilities and market mechanisms. This article will explore the repercussions of the normative concept of Global Public Goods within the framework of human rights law, international security law, international economic law, and intellectual property rights. The reference to the concept of Global Public Goods provides an overarching framework in a matter that concerns the international community. Thus, it requires us to develop and provide for international instruments of concrete collective action.
Baxi, U, ‘International Law and Covid-19 Jurisprudence’ in Werner Gephart, (ed), In the Realm of Corona Normativities: A Momentary Snapshot of a Dynamic Discourse (Vittorio Klostermann, 2020) 179–182
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.
Becker, Michael A, ‘Ireland and International Law 2020’ (2020) 15 Irish Yearbook of International Law (forthcoming) Abstract: This correspondent report on Ireland and International Law in 2020 provides an overview to developments relating to COVID-19, Brexit, Ireland’s election to the UN Security Council, new international agreements entered into by Ireland, positions taken by Ireland in relation to a range of foreign conflicts, and Ireland’s engagement with international human rights mechanisms, international disarmament, climate change, peacekeeping, international development and diaspora affairs.
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.
Beqiraj, Julinda and Francesca Ippolito, ‘COVID-19 and International Organizations: Challenges and Opportunities from the Perspective of Good Governance and the Rule of Law’ (2021) 18(3) International Organizations Law Review 293–306 Extract from Introduction: Almost two years since the COVID-19 outbreak, the extreme pressure put by the pandemic on legal systems worldwide cannot be ignored. Governments have struggled to adapt existing legislative frameworks, administrative functions, and executive decision-making to the fast-changing and complex situation of the pandemic emergency. In the case of International Organizations (IOs), the crisis, involving disruptions of daily activities, as well as of core civil, political, economic and social rights, has put to test their everyday operations, often questioning their ability to realize their mandate.
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.
Bottoni, Rossella, ‘Implications of the COVID-19 Pandemic for Religious Minorities from the UN Perspective’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 3–18 Abstract: The COVID-19 pandemic has posed a serious challenge to the enjoyment of freedom of religion or belief. This article examines how this was addressed in the context of the UN machinery on human rights protection. UN documents indicate a holistic perspective that the global crisis could not be solved only with public health and emergency measures, but also required a human rights-based approach. The UN also exhibited a concern for application of the principles of necessity and proportionality, with particular regard for the inclusion of marginalized and vulnerable groups, such as religious minorities.
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 et al, ‘Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic’ (2023) 23(1) Human Rights Law Review Article ngac036 Abstract: While the right to health has gained significant momentum in international law over the past two years, there is little clarity on what it means for States to comply with this right in times of COVID-19. Taking Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights as a starting point, our article follows an approach guided by the rules of treaty interpretation under the Vienna Convention on the Law of Treaties to suggest how right to health obligations to prevent, treat and control infectious diseases should be interpreted in relation to COVID-19, and how these obligations interact with general obligations of immediacy, progressive realisation, minimum core and international assistance and cooperation in this context. This article makes a novel contribution to clarifying the right to health during COVID-19, thus enhancing capacity for the oversight of this right; its incorporation in global health law; and the understanding of its corresponding obligations in future global health emergencies.
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 ‘Implementation and Compliance in International Law: Implications for Pandemic Rulemaking’ (Graduate Institute of International and Development Studies, Global Health Centre, Discussion Paper, 2023) Abstract: This discussion paper has been prepared for the workshop on ‘Implementation and Compliance in International Law: Implications for Pandemic Rulemaking,’ which took place on July 6, 2023, at the Geneva Graduate Institute. The workshop aimed to provide an opportunity for members of Geneva-based permanent missions and government officials from capitals to delve into theories and practices of implementation and compliance across different international legal regimes. Currently, Member States of the World Health Organization (WHO) are actively negotiating an international agreement on pandemic prevention, preparedness, and response (WHO CA+) and amendments to the International Health Regulations (IHR). While discussions are still at an early stage, the workshop at the Geneva Graduate Institute offered an opportunity to initiate reflections on the wide range of implementation and compliance mechanisms available under international law and their relevance in light of the ongoing negotiations. This paper begins by introducing theories of compliance in international law. It then presents examples of institutions and practices related to implementation and compliance within three distinct regimes: human rights, anti-corruption, and multilateral environmental agreements. Finally, it provides a synthesis of the main elements of implementation and compliance present across various international legal frameworks and compares them with specific provisions of the Bureau’s Text of WHO CA+ and proposed amendments to the IHR.
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.
Burci, Gian Luca and Jennifer Hasselgård-Rowe, ‘Through the Rule of Law Looking Glass: The World Health Organization’s Role in Health Emergencies and Its Response to COVID-19’ (2021) 18(3) International Organizations Law Review 307–334 Abstract: Transposing rule of law principles from the national to the international level, in particular to international organizations, still raises questions and can be problematic. However, rule of law considerations play an important role when international organizations exercise a substantial amount of public authority and may directly affect states as well as individuals. The World Health Organization (WHO), unlike other international organizations, has a constitutional mandate to prevent and respond to international acute emergencies in the form of disease outbreaks and pandemics. Its main normative tool is the 2005 International Health Regulations (IHR), that represent a breakthrough from past instruments but also raise questions and challenges that can be effectively analyzed from a rule of law perspective. This approach applies in particular to ambiguities in important parts of the IHR affecting their relevance and effectiveness; lack of clarity for processes leading to sensitive executive decisions; the absence of compliance assessment mechanisms resulting in lack of accountability for states parties; and an inadequate inclusion of human rights guarantees. The analysis is extended beyond WHO’s functions, to the impact of COVID-19 on the organization’s governance as well as its internal management.
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.
Campbell, Sophie, ‘How Can Global Health Law Change After COVID-19?’ (2021) 1(6) Global Health: Annual Review 142–144 Abstract: COVID-19 triggered an urgent and massively impactful global health crisis placing unprecedented strain on health care systems, damaging the livelihoods of many, and forcing economies into recession. Above all, COVID-19 elucidated the significant flaws in international, federal and provincial laws and policies that govern emergency response preparedness against communicable diseases. As SARS-CoV-2 will not be the sole highly transmissible and novel communicable disease to affect the human population, the time is ripe to reimagine legal frameworks such that they are adequate in protecting population health, upholding human rights, and ensuring economic stability. The current global situation provides a meaningful opportunity to examine issues with the only international rules governing global health security, the International Health Regulations (IHR), to determine potential solutions
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.
Chen, I-Ju, ‘The Impact of COVID-19 on Global Administrative Law’ (2021) 24(36) Juris Poiesis 280–287 Abstract: This article has two rationales. The first is to examine global administrative challenges and governmental responses to COVID-19. The other aim is to assess the impacts of the pandemic on a newly-emerging field of Global Administrative Law (GAL). The required measures of COVID-19 control, including national lockdown designation and implementation, have presented challenges which governments have struggled to deal with since early 2020. The problem has been further complicated by the anti-science stance of populist leaders such as Donald Trump and Jair Bolsonaro, who have downplayed the COVID-19 crisis and failed to take prompt and decisive measures of response. Administrative challenges arising from these failed measures revolve around racial inequality, contested access to healthcare systems and affected human rights, as well as impeded cross-border sharing of scientific data for global health efforts. These are the challenges to which a 21st century GAL must respond. GAL can be understood as a regime, which is composed of the legal rules, principles, and institutional norms applicable to processes of administration which are undertaken in approaches that implicate more than purely intra-state structures of legal and political authority. GAL as an emerging international legal regime entails dual insights. On the one hand, GAL is usually termed as global governance; on the other hand, such governance can be regulated by national administrative law. As a result, the discovered impacts of COVID-19 on the development of global administrative law include positive and negative effects. This article concludes that GAL plays a key role in responding to the pandemic as well as providing legal frameworks outlining states’ governance.
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.
Chowdhury, Ahmed Ragib, ‘Entry Regulation and Border Closures: Are States in Violation of International Law under the Mandate of “Responding to the COVID-19 Crisis”?’ (2021) 1(1) University of Asia Pacific (UAP) Law Review 30–46 Abstract: To tackle the COVID-19 pandemic, states around the world have taken a variety of measures including entry restrictions and border enclosures. Travel restrictions became the norm in terms of state practice irrespective of the WHO recommendations. States cannot ignore the implications of the travel restrictions imposed by them. This research article, by utilizing a doctrinal and comparative framework, aims to assess the measures taken by states in the past in response to similar outbreaks. This article will focus on the legality of travel restrictions within the framework of International Health Regulations (2005), while assessing the legality and impact of the said travel restrictions on human rights within the ambit of permissible derogations. Finally, this article will draw a contrast with state measures under regional human rights treaties. Travel restrictions imposed by states can be argued to not be in contravention of the International Health Regulations (2005) subject to justifications of scientific basis for such measures. The principle concern remains whether the measures taken by the states fall within the ambit of permissible derogation from the concerned international human rights obligations. Assessment of unilateral decision-making by states such as travel restrictions in contrast with an established and effective legal framework is required now more than ever to structure a uniform response to future global crises of similar nature and establish proper protocols.
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.
Cloete, Kyle Alex, ‘The Impact of Covid-19 on Human Rights: A Critical Analysis of the Lawfulness of Measures Imposed by States During the Pandemic under International Law’ (2021) 15(1) The Pretoria Student Law Review 63–76 Abstract: The COVID-19 pandemic provided ideal conditions for the violation of human rights. In efforts to curb the spread of the virus, numerous states violated their international law obligations outlined in treaties and customary international law. This article aims to analyse state responses to the global pandemic and will consider how their lawfulness should be measured. To this end, the framework of due diligence is utilised as a system to regulate and assess the legality of state actions amidst times of emergency. Furthermore, this article argues that the principle of due diligence must be developed to sufficiently regulate instances of derogation that extend beyond restrictions. This development must also be informed by an intersectional approach that prioritises the protection of vulnerable groups, owing to the disproportionate impact of COVID-19 on these communities. Stemming from this analysis, the article will conclude by considering the landscape of state actions in handling COVID-19 under the banner of due diligence and imagines a construction of international law that more adequately protects human rights amid regional and global crises.
Cocchini, Andrea and Gonzalo Villalta Puig, ‘Due Diligence in Pandemic: State Accountability For Covid-19 Under International Law’ (2022) 29(2) Indiana Journal of Global Legal Studies 1–25 Abstract: The coronavirus disease 2019 pandemic has tested the response capacity of the international community. This article analyses the due diligence principle and the various international legal instruments that restate it in an assessment of the possible actions that states could have taken to avoid or, at least, contain the initial outbreak of the pandemic.
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.
Collado Perez-Llantada, Juan, ‘A Critical Analysis of the Relationship between Collective Security and Global Public Health in Light of the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3992802, 23 December 2021) Abstract: In Resolution 2532(2020) the unprecedented events of the COVID-19 pandemic were characterised by the UN Security Council as an endangerment to international peace and security. This resolution created uncertainty as to the use of powers and mandate of the UNSC to address non-traditional threats. Considering the legal tools at the disposal of the Council, it has been suggested that a better collective action could have been implemented during this time. This study aims to provide analytical clarity regarding the concepts of collective security and global public health. Specifically, it analyses the flexibility and understanding of the concept of collective security, the conceptualization by the UNSC of the threat of COVID-19 under Article 24(1) of the UN Charter, and the implications of this resolution to the UNSC mandate. I argue that the relationship between collective security and global public health has become more evident after COVID-19 as it situates the UNSC role in any action towards the containment of a communicable disease. In light of the examination of both concepts and their implications to the UNSC mandate, I tentatively propose several avenues for future research that could better aid and support the most affected areas of a health threat.
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
Dąbrowska-Kłosińska, Patrycja, ‘The Protection of Human Rights in Pandemics: Reflections on the Past, Present, and Future’ (2021) 22(6) German Law Journal 1028–1038 Abstract: This special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.
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.
Davies, Kirsten et al, ‘CHANS-Law: Preventing the next Pandemic through the Integration of Social and Environmental Law’ (2022) International Environmental Agreements: Politics, Law and Economics (advance article, published online 13 March 2022) Abstract: Zoonotic viruses have sacrificed hundreds of millions of people throughout human history. There are currently 1.7 million unidentified viruses estimated to be circulating in mammal and bird populations. It is foreseeable that in the near future, another of these will transmit to people, heralding the start of the next pandemic—one potentially more deadly than COVID-19. At the core of this article is a call for pre-emptive protection of the natural environment and its regenerative systems as the first fundamental step in the prevention of future epidemics and pandemics. While zoonoses originate in nature, the predominant legal discipline, managing these crises, is international health law which is invoked reactively once an outbreak has been reported. In this paper, we identify the need for a legal shift in epidemic and pandemic responses. In particular, we call for the incorporation of international environmental agreements to prevent the initial viral spillover from animal to human populations. We propose a strategy of strengthening existing agreements and a coupling of legal disciplines, such as health and environmental law, emphasizing the need for synergies across legal disciplines to enhance the emergence and management of future pandemics and epidemics. We introduce Coupled Human and Natural Systems (CHANS) Law to frame the required integration across legal instruments to regulate inextricably human-nature connections and advocate for the development of a Convention on Epidemics and Pandemics.
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.
Deva, Surya, ‘COVID-19, Business, and Human Rights: A Wake-Up Call to Revisit the “Protect, Respect and Remedy” Framework?’ (2021) 23(5) International Community Law Review 433–449 Abstract: COVID-19 has affected the full range of human rights, though some rights holders have experienced a disproportionate impact. This has triggered debate about the respective obligations and responsibilities of states and business enterprises under international human rights law. Against this backdrop, this article examines critically whether the ‘protect, respect and remedy’ framework operationalised by the UN Guiding Principles on Business and Human Rights is ‘fit for the purpose’ to deal with the COVID-19 crisis. I argue that while the UNGPs’ framework provides a good starting point, it is inadequate to bring transformative changes to overcome deep-rooted socio-economic problems exposed by this pandemic. Realising human rights fully would not only require harnessing the potential of states’ tripartite obligations, but also move beyond limiting the responsibility of businesses to respect human rights.
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.
Dias Simões, Fernando, ‘Pandemics, Travel Restrictions, and the Distancing from International Law’ (2021) 16(2) Asian Journal of WTO & International Health Law and Policy 249–274 Abstract: History shows that governments confronted with a pandemic tend to impose travel restrictions. This tradition was taken to unprecedented extremes in response to COVID-19. However, contrary to common perceptions, travel restrictions are not effective and at most delay the peak of a pandemic by a few days or weeks. The International Health Regulations (hereinafter ‘IHR’) were created to strike a balance between the protection of public health and the maintenance of international mobility. Yet, States Parties almost universally disregarded the Regulations, imposing measures that only added to the economic and social disruption caused by the pandemic. In recent months, ‘social distancing’ became a household expression. This article argues that the widespread implementation of travel restrictions during the COVID-19 crisis is also a symptom of a different type of distancing—that of states from their international law obligations. It examines some potential explanations for the astonishingly high rate of non-compliance with the IHR and urges states to take their international law obligations more seriously.
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.
Dixit, Pratik, ‘Synergising International Public Health Law and International Disaster Law’ (2022) 13(1) European Journal of Risk Regulation 45–55 Abstract: There is no time more opportune to review the workings of the International Health Regulations (IHR) than the present COVID-19 crisis. This article analyses the theoretical and practical aspects of international public health law (IPHL), particularly the IHR, to argue that it is woefully unprepared to protect human rights in times of a global public health crisis. To rectify this, the article argues that the IHR should design effective risk reduction and response strategies by incorporating concepts from international disaster law (IDL). Along similar lines, this article suggests that IDL also has a lot to learn from IPHL in terms of greater internationalisation and institutionalisation. Institutionalisation of IDL on par with IPHL will provide it with greater legitimacy, transparency and accountability. This article argues that greater cross-pollination of ideas between IDL and IPHL is necessary in order to make these disciplines more relevant for the future.
Dongol, Nikhil and Syeda A Tripty, ‘Access to Information as a Human Right Amid the Pandemic’ (2021) 1(1) University of Asia Pacific (UAP) Law Review 71–82 Abstract: With the outbreak of coronavirus in late December 2019, people around the world were forced to stay indoors. The lockdown had moved all the works to go online or virtual. With this, a virtual world has expanded and people have been easy to reach out on the internet. On the dark side, there are rampant misinformation and disinformation throughout the online world. This paper is an attempt to attract attention towards the ensuing infodemic which has been running havoc in connivance with the pandemic. This infodemic has increased the duty of the state to prevent from creating further havoc in an already wrecked system fighting the health crisis, especially in South Asia. The objective of this article is to explore the attempts made by the government in South Asia to cope up with yet another crisis particularly in the context of the law. It aims to analyse the right to freedom of speech and expression coupled with the fundamental right of the citizen to access information. The article further discovers the relevance of the interdependence of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) more during the pandemic. However, this article does not attempt to provide a blueprint for implementation of the policy to combat the infodemic due to the diversity of situations faced by different countries to varying degrees rather would highlight the best practices of states and would explore the institutional mechanism coping with this situation. This is doctrinal legal research, where primary data was obtained from legislation and case law, whereas secondary data was obtained from various hard copy and soft copy books, journals, articles, reports as well as literature reviews. Both quantitative and qualitative data were employed to both the provisions of access to information in South Asian countries.
Drobnik, Marcin Jakub, Ivan Bimbilovski and Shubham Pathak, ‘Space Law and Space Mining, Exploring New Horizons Amid COVID-19 Pandemic’ (2023) 7(Special Issue: COVID-19: Emerging Research) Emerging Science Journal 114–127 Abstract: This study analyses the current scenario with COVID-19 affecting the international and Thai space law, and its impacts and corresponding repercussions upon the Thai economy, ASEAN region and then at international level. The methodology adopted for this study is a mixed method with qualitative research tools collected from key informant interviews and focus group discussions. The data analysis involves the Strength, Weakness, Opportunity, and Threat (SWOT) analysis, which has been integrated with Hierarchical Thematic areas to provide the supporting model for wholesome recommendations through analyzing the findings from the research. The key respondents involved several government officials associated with Thai space agencies and departments, along with judges, lawyers, researchers, academicians, non-government organizations (NGO) officials, and law students. The findings provided the need for adoption of Treaty leading to the creation of a space organization which would be accountable towards setting up a legal framework for commencement of space mining operations. The international space tribunal is to be created under this international space organization to resolve any disputes arising out of space mining. The overall implications of this research would lead to the sharing of the benefits of space mining with both developed and developing countries to enhance sustainable development for all mankind.
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.
Du Plessis, Georgia Alida, ‘COVID-19 and Limitations to the International Right to Freedom of Religion or Belief’ (2021) 63(4) Journal of Church & State 619–647 Extract from Introduction: The largest pandemic outbreak in the twenty-first century to date is the coronavirus disease (COVID-19), causing, as of October 6, 2020, 1,051,475 deaths worldwide.1 This has caused countries worldwide to institute drastic regulations that are affecting human rights, economics, health, and politics. The right to freedom of religion or belief (FORB) as contained in the International Covenant on Civil and Political Rights (ICCPR) has been challenged and affected by the unique and urgent circumstances created by the COVID-19 pandemic and the immediate threats posed to society. The article proceeds by discussing the general international human rights framework regarding FORB. Two possible instances of limitation during COVID-19 are analyzed in depth. The possibility of derogation from some elements of FORB during public emergencies under the notions of freedom of assembly, freedom of association and religious minority rights is investigated. Thereafter, the limitation of FORB during COVID-19 and under Article 18, on two of the listed grounds—namely, ‘public health’ and ‘the rights and freedoms of others’—and the resulting doctrine of proportionality, will be scrutinized. The aim is to indicate the process of establishing the proportionality of ‘social distancing’ limitations to FORB under COVID-19. Finally, recommendations are given as to the responsibilities of States Parties toward FORB in the event of proportional limitations during COVID-19.
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.
Dyer, Fiona, Claire Lightowler and Nina Vaswani, ‘Exacerbating, Illuminating and Hiding Rights Issues: COVID-19 and Children in Conflict with the Law’ (2022) The International Journal of Human Rights (advance article, published 11 April 2022) Abstract: This article explores the impacts of the response to COVID-19 on the rights of children in conflict with the law. It focuses on three significant rights issues: responding to all children as children (UNCRC, Article 1); non-discrimination (UNCRC, Article 2) and deprivation of liberty as a last resort (UNCRC, Article 37). Completing a Child Right’s Impact Assessment, a structured approach to considering children’s rights issues, helped us identify the key concerns around these three UNCRC articles. We argue that, while the COVID-19 pandemic has precipitated an erosion of children’s rights for those in conflict with the law, the response to the pandemic has primarily compounded and illuminated pre-existing rights issues. It has also further hidden from view some children and their experiences. If we are to ensure that rights are respected, especially in future crisis scenarios, we need to ensure that upholding rights is not perceived as optional. This suggests greater efforts are needed to challenge deep-rooted societal and professional attitudes towards children in conflict with the law and their rights; to address fundamental societal inequalities, and; to strengthen the ability to challenge when rights are not respected.
Eccleston-Turner, Mark et al, ‘Implementation, Compliance, and Pandemic Legal Obligations’ (2023) 380(6647) Science 792–794 Abstract: Member states of the World Health Organization (WHO) are undertaking ambitious governance reforms to prevent, prepare for, and respond to pandemics by concurrently negotiating both a new international legal instrument (henceforth called ‘the Pandemic Treaty’) and amendments to the International Health Regulations (IHR). We therefore find ourselves at a critical juncture in global health governance, with the opportunity to strengthen pandemic prevention, preparedness, and response through international law. One issue being given considerable prominence in each of these negotiations is how compliance by member states with their obligations can best be achieved. We argue that any efforts to ensure compliance with these instruments should be seen as part of broader efforts to ensure effective and equitable implementation, as opposed to being overly focused on formal compliance mechanisms and the possibility of punitive action in response to noncompliance.
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.
Eichensehr, Kristen E (ed), ‘United States Seeks Answers on COVID-19’s Origin While Stepping Up “Vaccine Diplomacy”’ (2021) 115(4) American Journal of International Law 732–739 Abstract: As the COVID-19 pandemic continues to rage across the world, the United States and its allies are pushing for answers about the virus’s origins while China rebuffs inquiry into its early handling of the outbreak. Meanwhile, a growing U.S. stockpile of vaccines has opened new avenues for ‘vaccine diplomacy,’ and the Biden administration has thrown its weight behind an effort to suspend cross-border intellectual property (IP) rules for vaccine manufacturing. In the near term, however, experts expect vaccination rates and access will continue to vary widely between countries depending on their wealth.
Eini, Mohsen, ‘Counterfeit in Medical Products under the Situation of Coronavirus Pandemic and the Necessity for the Realization of Hard Law at International Level’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: Counterfeit in medical products including drugs and medical equipment threatens the people’s health and public health and justifies combatting with it, but effective and comprehensive combat with this phenomenon before anything needs a binding international instrument that despite some efforts, its codification has failed. By adopting some relevant strategies, the Council of Europe Convention on the counterfeiting of medical products and similar crimes involving threats to public health has facilitated combatting this phenomenon at the European level. However, the mentioned European instrument is not free of fault, and now, considering the public health protection given the Covid-19 pandemic and the continuity, diversity, and the predictable increase in counterfeit medical products, drafting a binding international instrument and enforcement of hard laws in this regard under the direction of WHO along with public participation of all beneficiaries, can organize the global combat with this phenomenon properly. The competent players in Iran can help in the establishment of the related hard laws at a global level by pursuing this subject at the international arenas.
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.
Emeziem, Cosmas, ‘Mapping the Trends: Human Trafficking, COVID-19 Pandemic and International Law’ in Manas Chatterji et al (eds), International Migration, COVID-19, and Environmental Sustainability (Emerald Publishing, 2023) 153–187 Abstract: Trafficking in human beings is gross. It constitutes one of the most egregious violations of human rights. The vile nature of human trafficking is also hinged on the fact that it commodifies human beings. Hence its categorisation is modern slavery. So much of trafficking activities follow the pathways of other transnational forms of organised crimes and irregular cross-border movement of people. In response to this egregious crime, several international, regional and country laws and instruments have been used or proposed for combatting human trafficking. These instruments forbid trafficking in human persons and provide several preventive measures, prosecution of perpetrators and protection of victims of human trafficking. The number of state parties to the United Nations Protocol to prevent suppress and punish trafficking in persons, especially women and children, supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Protocol), demonstrates the global commitment to combatting human trafficking. However, the COVID-19 pandemic and its impact on legal systems, and the capacity of both state and private institutions to combat human trafficking, has added a knotty twist to the global problem of human trafficking. This essay looks at the trends of human trafficking in light of the COVID-19 pandemic. It also highlights international law and policy approaches that state parties and civil society organisations should adopt to counteract the changes and sustain the fight against human trafficking. Thus, the essay contributes to updating the legal and policy approaches to combat human trafficking in this era.
Emmons, Cassandra V, ‘Responding to COVID-19 with States of Emergency: Reflections and Recommendations for Future Health Crises’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 375 Abstract: In responding to COVID-19, governments faced the unique task of balancing protections for individual human rights against restrictions necessary for the collective good. International human rights law establishes clear guidelines for states that need to limit or derogate from certain rights in order to address crises, but states have only selectively participated in these regimes during COVID-19 response. After reviewing these clauses, this chapter discusses the rates at which states complied with reporting requirements when limiting rights. It then evaluates the promises and pitfalls of courts and monitoring bodies as the primary international checks on crisis governments. In the conclusion, it is proposed to prepare for future pandemics by expanding the role of international bodies like the World Health Organisation in defining public health crises, changing procedures limitations clauses and norms around derogation and providing the most accurate information to the public.
Essawy, Rana Moustafa, ‘Closing the Doors on Health Nationalism: The Non-Emptiness of the Legal Duty to Cooperate in Pandemic Response under Lex Specialis’ [2022] Max Planck Yearbook of United Nations Law Online (advance article, published online 11 October 2022) Abstract: Abstract No one is safe until everyone is safe. Although this phrase has received wide consensus during COVID-19, this pandemic has witnessed a surge in health nationalism. States have imposed export restrictions on COVID-19-related medical supplies and vaccines seeking to preserve them for their own populations. This has adversely affected the availability of those necessary tools in other countries undermining their efforts in fighting the pandemic. Thus, it could be argued that States have violated their obligation to cooperate under Art. 44 of the 2005 World Health Organisation (WHO) International Health Regulations (IHR). Nevertheless, States’ export restrictions have been legally justified under the General Agreement on Trade and Tariffs (GATT). Does this mean that the duty to cooperate is an empty obligation that fails to counter health nationalism? It is the purpose of this paper to demonstrate otherwise using the principle of lex specialis derogat legi generali. Under this principle, the duty to cooperate in pandemic response under Art. 44 of the IHR prevails over States’ rights under GATT, rendering health nationalism legally unjustified.
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.
Fajber, Kaitlin, ‘Business as Usual? Centering Human Rights to Advance Global COVID-19 Vaccine Equity Through COVAX’ (2022) 24(2) Health and Human Rights Journal 219–228 Abstract: This essay examines the extent to which COVID-19 Vaccines Global Access (COVAX) has been a successful mechanism for global COVID-19 vaccine equity as a component of the human right to health. First, I provide background on COVID-19 vaccine equity and COVAX as part of the Access to COVID-19 Tools ACT-Accelerator. Second, I situate access to COVID-19 vaccines within the context of human rights to exemplify how the international community intended COVAX to advance both health equity and the human right to health. Third, I assess how those intentions have played out in practice due to challenges of vaccine nationalism, lack of transparency, funding shortfalls, unreliable donations, inadequate civil society participation, and inequitable resource allocation. Fourth, I suggest how COVAX might function differently if human rights were centered within its purpose, strategy, and operations. Ultimately, I argue that COVAX is upholding a largely market-oriented approach to making essential medicines accessible and that COVAX would be a more effective mechanism for vaccine equity and global health if it were grounded in human rights.
Fan, Jizeng and Yuhong Wang, ‘Precautionary Proportionality Principle as an Instrumental Preventive Measure from the COVID-19: Can European Human Rights Survive in the State of Public Health Emergency?’ [2021] (1) Przegląd Europejski 117–143 Abstract: The authors believe that the C. Schmitt’s notion of unconstraint sovereignty is not flawless. Both A. Dicey’s theory of British constitutional law and the international human rights instruments have required the measures of the derogation of human rights must be given in accordance with pro proportionality principle. However, these normative requirements have hardly been applied to the judicial scrutiny by the two supranational courts in Europe. Correspondingly, some European public authorities favour the more radical precautionary principle. Although this principle is more effective in suppressing the new coronavirus, it is associated with numerous side effects. Thus, the authors propose in this article an innovative concept of precautionary proportionality principle.
Farrall, Jeremy and Christopher Michaelsen, ‘The UN Security Council’s Response to COVID-19: From the Centre to the Periphery?’ (2021) 39(1) The Australian Year Book of International Law Online 214–230 Abstract: This article examines the UN Security Council’s response to the escalating COVID-19 pandemic in 2020, which has been criticised as hesitant and half-hearted. It argues that the Council’s inability to respond more assertively to the COVID threat was more predictable than surprising. Indeed, the Council’s approach to the COVID threat tended to follow, rather than diverge from, its past practice, exhibiting three increasingly entrenched features of Council decision-making in a crisis. First, the Council is hesitant and ill-equipped to respond to non-traditional or unorthodox threats to international peace and security, even where relevant precedents exist to support such a response. Second, the Council struggles to act when there is friction between permanent members. Third, when all else fails, the Council can still do reliably well on process.
Farrell, Brian et al, ‘International Law Online: How Will the Pandemic Change the Practice of Law?’ (2021) 115 Proceedings of the ASIL Annual Meeting 289–294 Abstract: This panel was convened at 1:45 p.m., Friday, March 26, 2021, by the ASIL-Midwest Interest Group. Through a roundtable discussion, the panel explored the changes that the pandemic has had on the practice and teaching of international law.
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.
Fontenot, Lily, ‘COVID–19, Housing and Evictions: A Comparative Case Study of Housing Law and Policy in the United States and Argentina through an International Human Rights Lens’ (2021) 53(1) University of Miami Inter-American Law Review 159-195 Abstract: This Note seeks to address the impact of international human rights obligations on domestic housing laws and policies through a comparative case study of Argentina and the United States. Specifically, it will discuss each country’s response to the COVID-19 pandemic, their housing obligations under international human rights law, and how each country is addressing their own unique housing and eviction crises. Finally, this Note will offer recommendations on how each country should modify their housing policies in light of the pandemic in order to comply with international human rights standards.
Ford, Jolyon, ‘COVID-19, International Human Rights Law and the State-Corporate Complex’ (2021) 39(1) The Australian Year Book of International Law Online 195–213 Abstract: Data-driven technologies (such as mobile phone-based tracing apps) have been at the forefront of public health responses to the COVID-19 pandemic. However, we have also seen high-level expressions of concern about how state actions ostensibly in pursuit of public health goals have in fact greatly accelerated existing human rights concerns about newer technologies, especially increased state and corporate surveillance. This article explores issues at the nexus of COVID-19 public health responses, civil-political rights under international human rights law, and the responsible governance of data-driven technologies. In particular, it offers a framework to evaluate the human rights compatibility of tech-assisted COVID-related state measures. The articles also explore analogies between COVID-related measures and post-2001 counter-terrorism actions taken by states in the name of public security. It cautions against exceptional measures becoming hardwired in ways that may unreasonably impact on pre-COVID freedoms. The article argues that the blurring of state and corporate surveillance and data-gathering and the often symbiotic relationship between tech firms and governments (the ‘state-corporate complex’) complicate efforts to assert clear frames of responsibility.
Forman, Lisa, Basema Alami and Kaitlin Fajber, ‘An Inquiry into State Agreement and Practice on the International Law Status of the Human Right to Medicines’ (2023) 24(2) Health and Human Rights Journal 125–140 Abstract: Global disparities in access to COVID-19 vaccines have brought back into focus questions about whether the right to medicines has assumed any level of binding legality within international law. In this paper, we attempt to answer this question by considering if there is evidence of subsequent state agreement and practice to read the right to medicines into the rights to health and science protected in the International Covenant on Economic, Social and Cultural Rights. We adopt the interpretive framework in the Vienna Convention on the Law of Treaties and the International Law Commission’s 2018 report to analyze the work of the United Nations Committee on Economic, Social, and Cultural Rights relevant to medicines, and its relationship to the content and voting in successive resolutions of the United Nations General Assembly. We find that these resolutions provide some evidence of state agreement that the rights to health and science, as enshrined in the International Covenant on Economic, Social and Cultural Rights, include access to affordable medicines. Yet the legal implications of this right remain highly contested, particularly when it comes to trade-related intellectual property rights. The negotiation of a pandemic treaty offers possibilities for codifying this right beyond these discursive instances, while political opposition remains likely to continue to undercut this emerging legal norm.
Forman, Lisa, Carlos Correa and Katrina Perehudoff, ‘Editorial: Interrogating The Role Of Human Rights In Remedying Global Inequities In Access To Covid-19 Vaccines’ (2022) 24(2) Health and Human Rights Journal 121–124 Abstract: Access to safe and effective COVID-19 vaccines is central to controlling the global COVID-19 pandemic. It is also an essential element of advancing universal health coverage under the Sustainable Development Goals, and it is essential to realizing a range of human rights related to health. Yet disparities in access to COVID-19 vaccines in low and middle-income countries (LMICs) have emerged as this pandemic’s singular human rights and equity challenge. In high- and upper-middle-income countries, almost two-thirds of people are fully vaccinated, while in low-income countries, this figure falls to under 20%. Underlying these disparities is a tangled web of international law regimes that significantly shape related policy, from the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which governs intellectual property rights, including for pharmaceutical patents, to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which governs the human rights to health and to benefit from scientific progress. Such disparities are the central focus of this special section on COVID-19 vaccine equity and human rights, which brings together a diverse group of scholars and practitioners to consider pressing questions about the status, force, and impact of human rights law and rhetoric in this domain.
Forman, Lisa and Roojin Habibi, ‘Revisiting the Legality of Travel Restrictions Under International Law During Covid-19’ (2022) 71(3) International & Comparative Law Quarterly 743–760 Abstract: Under the International Health Regulations (IHR), States must consider decision-making criteria in applying travel restrictions during a public health emergency of international concern. Interpretation on the legal parameters of such restrictions varies widely. This article considers whether and how the permissibility of travel restrictions under the IHR may have changed given recent developments, including evolving scientific evidence about their efficacy and shifting World Health Organization (WHO) advice. It is argued that such determinations must conform to the principles of necessity and proportionality as articulated by the IHR, and must also be accompanied by the correlative IHR duties of collaboration and assistance rooted substantively in global solidarity.
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.
Gábriš, Tomáš and Ondrej Hamuľák, ‘Pandemics in Cyberspace: Empire in Search of a Sovereign?’ (2021) 14(1) Baltic Journal of Law & Politics 103–123 Abstract: Traditionally, the idea of a sovereign is being connected either with an absolutist ruler (later replaced by ‘the people’) at the national level, or the nation-state at the international level – at least in the conditions of the Westphalian system created in 1648. Today, on the contrary, we are witnessing a ‘post-’ situation in many respects – post-modernism, post-positivism, but also post-statism – basically being a sort of return to the pre-Westphalian system (see Ondrej Hamuľák, ‘Lessons from the “Constitutional Mythology” or How to Reconcile the Concept of State Sovereignty with European Integration,’ DANUBE: Law, Economics and Social Issues Review Vol. 6, No. 2 (2015); or Danuta Kabat-Rudnicka, ‘Autonomy or Sovereignty: the Case of the European Union,’ International and Comparative Law Review Vol. 20, No. 2 (2020)). However, paternalistic views, prevailing especially in times of crisis and uncertainty, desperately search for a sovereign to lead us from the crises. With regard to cyberattacks and insecurity in the cyberspace this means an effort to subordinate cyberspace to state sovereignty. Still, given the limitations of traditional state-based monopolies of power and legislation, the state as an ‘analogue sovereign’ shrinks in the digital cyberspace rather to a co-sovereign, co-ordinator, or in feudal terms a ‘senior’ vis-à-vis their vassals. The actual ensuring of the tasks of state as a ‘digital sovereign’ is namely often being entrusted to non-state (essentially private-owned) entities, under the threat of legal sanctions. The current situation of constructing ‘digital sovereignty’ of traditional states or of the EU is thus marked by the necessity of cooperation between the state power and those non-state entities which are falling under its analogue jurisdiction.
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.
Galvão Teles, Patrícia, ‘International Legal, Policy and Institutional Issues Raised by the COVID-19 [Portugal]’ (2021) 36(5) American University International Law Review 1029–1033 Introduction: Three basic sets of questions arise when we attempt to look back to what is now almost one year of probably the greatest pandemic in human history, and also when we look to the future to see what can be improved to fight epidemics and pandemics of this scale and nature. The first set of questions, for us as lawyers, are the legal issues that we are dealing with in regards to the existing legal framework, and how it is interpreted and applied in the event of a pandemic. The second set of questions are policy issues. Discussing the policy issues, for international lawyers, means also discussing the policy issues that are of both a legal and institutional nature. The big question is the sufficiency of the legal framework that we have today, which we are currently using to combat the COVID-19 pandemic. The third set of questions are institutional. It is important to not only identify the tools within the current framework for combatting pandemics, but also identify the most appropriate and adequate responses in regards to economic and social measures. We must determine whether we do have an adequate legal framework and the adequate institutional framework, or whether those frameworks need to be improved.
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.
Goodwin, Louise, ‘The UN Security Council and Non-Traditional Security Threats: Why the Failures of the Council’s Covid-19 Response Dampen Hopes for Council Action on Climate Change’ (2022) 53(2) Victoria University of Wellington Law Review 251–280 Abstract: Since the late 1990s, the mandate of the United Nations Security Council has evolved significantly as the Council has increasingly engaged with non-traditional security threats. Such matters create economic, societal and/or political instability that places livelihoods in peril and increases risks of conflict. COVID-19 presents one such threat. This article analyses the Security Council’s COVID-19 response and highlights the challenges preventing effective and efficient action, with a view to understanding the Council’s present capacity to deal with emerging non-traditional security threats, particularly climate change. Key challenges include the political conflict within the Council, principally between permanent members, as well as the Council’s limited ‘toolkit’ for action, which is primed to respond to traditional security threats. Considering the burden that such challenges had on the Council’s COVID-19 response efforts, it is argued that the Council cannot be primarily relied on to manage other non-traditional threats. This is especially so in the case of climate change, which presents a more complex, multifaceted threat than a pandemic. A role for the Council that addresses consequences of climate change that most clearly fall within the Council’s mandate is proposed.
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, ‘Advancing Equity in the Pandemic Treaty’ (Georgetown University Law Center Research Paper, forthcoming, 9 May 2023) Abstract: There is a broad consensus around equity’s importance. Even countries that hoarded supplies during the acute phase of COVID-19 seem to understand that the international community must find a means to ensure fairer allocation of medical resources when the next health crisis hits. But there has been little agreement about the concrete steps needed to operationalize fairer access and benefit sharing. That is, what are the workable mechanisms that could reduce the divide between richer and poorer populations? The World Health Assembly, the governing body of the World Health Organization, has appointed an Intergovernmental Negotiating Body to develop a pandemic convention, agreement, or other instrument under the WHO constitution. The February 2023 draft is designed ‘to achieve greater equity … through the fullest national and international cooperation.’ It is important that the negotiators develop specific, measurable metrics that directly impact equity. The mechanisms and metrics agreed upon should allow the public to evaluate whether a more equitable system is emerging through this new regime. Equity won’t just happen. We need to plan and prepare for equity, and we need international norms with which nations must comply to achieve the fairness we strive for.
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 et al, ‘The WHO’s 75th Anniversary: WHO at a Pivotal Moment in History’ (Georgetown University Law Center Research Paper, forthcoming) Abstract: The World Health Organisation (WHO) was inaugurated in 1948 to bring the world together to ensure the highest attainable standard of health for all. Establishing health governance under the United Nations (UN), WHO was seen as the preeminent leader in public health, promoting a healthier world following the destruction of World War II and ensuring global solidarity to prevent disease and promote health. Its constitutional function would be ‘to act as the directing and coordinating authority on international health work’. Yet today, as the world commemorates WHO’s 75th anniversary, it faces a historic global health crisis, with governments presenting challenges to its institutional legitimacy and authority amid the ongoing COVID-19 pandemic. WHO governance in the coming years will define the future of the Organisation and, crucially, the health and well-being of billions of people across the globe. At this pivotal moment, WHO must learn critical lessons from its past and make fundamental reforms to become the Organisation it was meant to be. We propose reforms in WHO financing, governance, norms, human rights and equity that will lay a foundation for the next generation of global governance for health.
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, Eric A Friedman and Alexandra Finch, ‘The Global Health Architecture: Governance and International Institutions to Advance Population Health Worldwide’ (2023) 101(S1) The Milbank Quarterly 734–769 Abstract: The world’s failed response to COVID-19 — characterized by weak health systems, a distrust in science, and vastly inequitable access to global public health goods — provides a historic opportunity to reform the global health architecture, including its legal norms, processes, and institutions. We argue that these reforms should be based on the principles of good governance for health: the right to health, equity, inclusive participation, global solidarity, transparency, and accountability. This Perspective examines the global health architecture — its history, current state, and future. It begins by describing the principles of good governance for health, and then how current global health actors and instruments embody them or fall short. Finally, it examines reforms which are underway, particularly for health emergency preparedness and response (HEPR), and what others are needed to bring the global health architecture more in line with principles of good governance for health. Global health institutions and instruments, including new global health instruments currently being negotiated through the World Health Organization, should be reformed to fully incorporate the principles of good governance for health. Equity should be embedded into the prevention of, preparedness for, response to, and recovery from catastrophic health threats, within and across nations and sectors. Finally, robust and sustainable funding of key institutions, national health systems, and civil society would ensure more effective and just responses to health emergencies, including the daily toll of avoidable death and disease disproportionately experienced by poorer and more marginalized populations. Embracing this reform agenda, guided by principles of good governance for health, could ensure that our institutions and systems can protect and promote the health of all populations everywhere.
Gostin, Lawrence O, Sam F Halabi and Kevin A Klock, ‘An International Agreement on Pandemic Prevention and Preparedness’ (2021) JAMA Viewpoint, published online 15 September 2021 Abstract: During late 2021, national delegations are, or have, met at the United Nations General Assembly, the G20, and, most importantly, the Special Session of the World Health Assembly in November to determine whether the world needs a new international agreement to address pandemic prevention, preparedness, and response. The current international agreement, the International Health Regulations (2005), failed to work effectively – SARS-CoV-2 was not detected sufficiently early, relevant information was not shared efficiently, and the global response has not been coordinated. Even the most basic investigations were inadequate such as to discover the origins of SARS-CoV-2. Current proposals focus on the possibility of a soft law international instrument adopted through the World Health Organization, or a binding treaty formed under the United Nations or WHO. One bold possibility is to negotiate a pandemic treaty. This article analyzes the failures in international agreements and international institutions leading up to the declaration of a global pandemic by WHO on March 11, 2020, and the declaration, nearly a year later, about the need for a new international agreement. It analyzes the possible legal routes that such a new agreement may navigate, and, regardless of form, articulates the most important components of a new international agreement or treaty.
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.
Grossman, Claudio, ‘Pandemics and International Law: The Need for Action [Chile]’ (2021) 36(5) American University International Law Review 971–977 Introduction: Let me start by stating that international law has developed principles, norms, institutions that provide an important basis for addressing pandemics; and stressing important values in the international community, including cooperation among States and the vital role of international organizations—among others. First, I will make some introductory remarks on whether international law has norms, principles, and institutions relevant to the topic of pandemics. Then, I will propose a path forward.
Gruszczynski, Lukasz and Chien-huei Wu, ‘Between the High Ideals and Reality: Managing COVID-19 Vaccine Nationalism’ (2021) 12(3) European Journal of Risk Regulation 711–719 Abstract: This report examines what has come to be known as ‘vaccine nationalism’ through the lens of the early experience with the COVID-19 vaccination process. After explaining the meaning of the term, this report investigates how this phenomenon has manifested during the COVID-19 pandemic, identifying its epidemiological, economical, ethical and legal aspects. It also looks at the different international initiatives that have been adopted to deal with it, concentrating in this context on the COVAX project. The report concludes that the success of these initiatives has been limited. It also observes that COVID-19 vaccine nationalism appears to be a phenomenon that is characteristic of the high-income Western countries, while in aspiring non-Western powers the vaccine crisis is primarily seen as a way to advance their geopolitical goals.
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.
Gupta, Amit, ‘Panda Power? Chinese Soft Power in the Era of COVID-19’ (2022) 10(1) National Defense University Press 40–56 Abstract: China may be one of the few countries in world history that has created an international problem and then, possibly, could gain credit for solving it.
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, Timothy Fish Hodgson and Steven J Hoffman, ‘Failing Forward: How Human Rights Failures in Governments’ COVID-19 Responses Can Inform the Development of International Human Rights Law’ (2022) 24(3) International Community Law Review 209–232 Abstract: Despite the pandemic’s widespread and transnational impact on human rights, both solidarity and human rights have been side-lined in key intergovernmental discussions on global health law reform to date, while conversations about the development of international human rights law seldom consider global health law’s import to the field. This article argues that in spite of states’ apparent reluctance to reconcile and harmonise global health law and international human rights law for fairer and more effective public health emergency preparedness and response, international law experts and practitioners are well-placed to indirectly influence normative development in this direction, drawing on their past successes in clarifying and elaborating upon informal international legal standards. Merging strengths from existing legal frameworks of global health law and international human rights law, such expert standard setting efforts can help reimagine a ‘progressively harmonised’ framework of legal regimes for public health emergency preparedness and response.
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.
Hallas, Laura, ‘COVID-19’s New Cosmopolitanism? Structural Considerations for the Proposed Pandemic Treaty’ (2023) 132(8) Yale Law Journal 2578–2657 Abstract: This Note examines the World Health Organization’s current efforts to create a novel pandemic treaty as a potential turning point in global health law. COVID-19 shocked the status quo, but this Note argues that normative shift effectuated through specific treaty structures could ensure the world does better in another pandemic.
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.
Hampton, Abbie Rose et al, ‘“Equity” in the Pandemic Treaty: The False Hope of “Access and Benefit-Sharing”’ (2023) International and Comparative Law Quarterly, (forthcoming) Abstract: During COVID-19 the international community repeatedly called for the equitable distribution of vaccines and other medical countermeasures. However, there was a substantial gap between this rhetoric and state action. High-income countries secured significantly more doses than they required, leaving many low-income countries unable to vaccinate their populations. Current negotiations for the new Pandemic Treaty under the World Health Organization (WHO) attempt to narrow the gap between rhetoric and behaviour by building the concept of equity into the Treaty’s substantive content. But equity is difficult to define, much less to operationalize. Presently, WHO member states appear to have chosen ‘access and benefit sharing’ (ABS) as the sole mechanism for operationalizing equity in the Treaty. This paper examines ABS as a mechanism, its use in public health, and argues that ABS is fundamentally flawed, unable to achieve equity. It proposes other options for an equitable international response to future pandemic threats.
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.
Hathaway, Oona A et al, ‘The COVID-19 Pandemic and International Law’ (2021) 54(2) Cornell International Law Journal 149–244 Abstract: How does the COVID-19 pandemic affect States’ obligations under international law? This is a question of not just academic interest but real importance for people’s lives. After all, whether States abide by international law—and whether international law is fit for purpose—is vitally important for everyone from refugees exposed to the virus in unsanitary detention centers to national leaders fighting disinformation campaigns and safeguarding vaccine supply chains. International law has been central to the world’s response to the pandemic from the start—even if the participants did not always realize it. International law, after all, required States to take certain actions to detect and prevent the spread of the novel coronavirus. Some governments responded quickly and effectively, significantly reducing the impact on their populations, but many others were far less successful. Many have made matters worse by responding to the virus in ways that exacerbated the toll on the most vulnerable populations, violating their international law obligations in the process. Moreover, some States have used the pandemic as an excuse for delaying elections or for denying arrested persons adequate legal representation. This Article examines the many ways in which COVID-19 is straining the rules and norms of international law. It considers the five main bodies of international law implicated by the pandemic: international humanitarian law, international human rights law, immigration and refugee law, international cyber law, and the rules and regulations of the World Health Organization. It outlines the obligations each body of law impose on States, and how those obligations apply during the current pandemic. It concludes with several proposals for reform to the international legal system so that the world can prepare to more effectively address the next inevitable pandemic.
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.
Heathcote, Sarah, ‘State Responsibility, International Law and the COVID-19 Crisis’ (2021) 39(1) The Australian Year Book of International Law Online 122–140 Abstract: Disruptions caused by the global spread of COVID-19 have generated different types of responsibility claims at both the domestic and international levels. Alleged breaches of the law have resulted from the immediate reactions to the pandemic’s emergence and spread, as well as from less proximate adjustments made to the ongoing crisis. This contribution begins by briefly surveying the types of responsibility relevant to the crisis with a view to identifying systemic legal issues, particularly at the international level. It then focusses on the law of state responsibility for internationally wrongful acts, not to resolve the various claims that are or can be made, but in order to identify what this crisis reveals about the trends in the law of responsibility, the opportunities for its invocation, and indeed, state tactics in engaging with this body of law. Just as the pandemic has been revelatory of social trends, so too it has highlighted trends in the law and its operation.
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.
Hodgson, Timothy Fish (ed), ‘Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses’ (International Commission of Jurists, September 2020) Abstract: COVID-19 is at its core a public health crisis of potentially catastrophic proportions. The response of State authorities to the pandemic should be evidence-based and must lean significantly on the guidance of public health experts. However, the individual and collective responses of States must also be shaped and guided by obligations and responsibilities that they themselves have assumed in respect of the right to health. Such obligations in terms of the right to health include obligations to adopt effective measures to ensure the prevention, treatment and control of epidemic, endemic, occupational and other diseases. This clearly includes obligations to take measures to ensure the prevention, treatment and control of COVID-19. And these obligations must be pursued not only through the individual laws, policies and practices of each State, but also through collective international cooperation. This report details the international human rights law and standards in relation to the right to health, with a particular focus on the International Covenant on Economic, Social and Cultural Rights (ICESCR). It highlights States’ obligations, including those which must be prioritized and given effect immediately. It also emphasizes the responsibilities of non-State actors including international agencies like the WHO and businesses.
Hodgson, Timothy Fish, ‘The Unvaccinated: Equality Not Charity in Southern Africa’ (International Commission of Jurists, Briefing Paper, May 2021) Abstract: The paper focuses on the impact of COVID-19 on countries of the Southern African Development Community (SADC), a regional economic community comprising 16 Southern African countries whose goal is to enhance the standard and quality of life of the peoples in the region. Southern African States have individually and collectively failed to provide sufficient and equitable COVID-19 vaccine access to meet their human rights obligations.
Hoen, Ellen ‘t, ‘Protecting Public Health through Technology Transfer: The Unfulfilled Promise of the TRIPS Agreement’ (2022) 24(2) Health and Human Rights Journal 211–214 Abstract: The scrambling for access to COVID-19 vaccines by developing countries has reignited the debate on the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and its effects on public health and health-related rights.
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.
Hogue, N Nabila, ‘Global Pandemic: Need for a Legal Framework’ in S Ananda Babu (ed), 5thWorld Congress on Disaster Management (Routledge, 2022) Abstract: The primary objectives of this paper is to present a notion in favour of the need for a legal framework with two important prepositions. Firstly, that unprecedented Global Pandemic can’t be measured by the conventional sophistication that goes in the socio-economic system of sovereign nation and secondly the roots of a pandemic expansion & impact cannot be reduced if international disparity exists in the process. The present COVID-19 is not the first, the world witnessed pandemics in past, nations had to deal with them within their own territorial arrangements, without any global legal framework. A global pandemic effects the public health, economy and society of the infected nations without any discrimination however, disparity exists in approach taken to deal with such crises by the nations in lack of international agreements. WHO created, among others, the International Sanitary Regulations-1969 and International Health Regulations-1969 (updated in 2005). However, these or any other legal standings have almost nothing about a pandemic’s impact on economy or sharing international responsibility in reducing such economic vulnerability. The novel coronavirus has infected more the 200 counties, the mortality rate is soaring globally placing an huge challenge on existing health care facilities, it has disrupted the global economy, inter and intra-country supply chain is distorted causing stocks to crashed, trades to shrink. People (inland and migrant) around the globe are losing their lost jobs and the world stands at point blank to face, what might be, the worst recession. Infected countries are trying to manage this ugly situation by offering stimulus packages but there exists a glaring disparity. A national policy in not enough to tackle a global pandemic, what the world needs is a uniform global policy, a legal framework. A legal framework that will provide international agreement to prevent, regulate, control, monitor and reduce impacts of global pandemic on human health and economy. The legal framework may framed following the footsteps of other international conventions (e.g. Basel Convention) along with supportive national legislations. The COVID-19 pandemic is presently raging throughout the world creating multidimensional crisis for the society at large, thus it is high time for the international community to come forward to reach an agreement. The same will be structured to: reduce the virus at source and prevent cross boarder spreading; promote & ensure sound health management facilities to face the challenge of pandemic; advocate for workers to obtain subsistence benefit during the crisis period and re-employment in new normal time; make countries diligent to oblige with aid/investment financing; create pressure on importer/exporter, buyer/seller to forgo force majeure during such times and most importantly ensure research & development. Concerned activists groups/agencies should come forward and take initiative to influence the global leaders by raising their voice for such a legal framework.
Holcombe, Kate, ‘Ensuring Non-Discrimination in the Context of COVID-19 Triage Protocols’ (2021) 36(5) American University International Law Review 1053-1065 Extract: I would like to focus particularly on the role international law has to play in ensuring that the real or perceived limitations of States’ health care resources are not allocated on the basis of discrimination.... Thankfully, international law provides extensive guidance to States on ensuring non-discrimination that can be applied to the context of COVID-19 triage protocols and related resource rationing.
Hong Thao, Nguyen and Le Thi Anh Dao, ‘COVID-19 Pandemic, International Law, and Action Taken by Vietnam’ (2021) 36(5) American University International Law Review 993–1020
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).
International Commission of Jurists, ‘The Right to Water in India and the COVID-19 Crisis: ICJ Briefing Paper’ (International Commission of Jurists, Briefing Paper, June 2020) Abstract: There is the need for frequent hand washing to protect from, and prevent the spread of, COVID-19. However, for many people, particularly those living in poverty, water of adequate quality and quantity is either unavailable, inaccessible or only intermittently available. This increases the risk of transmission of COVID-19. Indian authorities’ failure to meet their obligations to address this situation results in violation of the rights to water and sanitation, life and health. It also presents a significant public health risk.
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 FutureThis 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.
Lundy, Laura, ‘Life Under Coronavirus: Children’s Views on their Experiences of their Human Rights’ 261–285
Ippolito, Francesca, ‘Re-Evaluating Triage in International Justice during COVID-19 – Complying with the Rule of Law?’ (2021) 18(3) International Organizations Law Review 448–481 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.
Abstract: This article addresses the challenges (and responses thereto) for those international institutions devoted to mandatory monitoring the individuals’ protection of fundamental rights during and after the COVID pandemic. It covers the practice of several of the main regional (European, Inter-American and African) judicial and quasi-judicial human rights bodies in a comparative overview with the UN human rights monitoring bodies and the International Criminal Court. The interesting medical metaphor of ‘triage’ (i.e., designing a system of priorities to maximize impact, during an emergency) is used to discuss the measures taken to preserve the rule of law, both in their internal functioning as well as in promoting the rule of law within national legal orders when monitoring the States’ compliance with international human rights obligations and guidelines about COVID-19. While overall, procedures in the different bodies were developed to ensure that the rule of law is maintained, which makes it easier to respond to similar crises in the future, the pandemic also sheds light on the need to revisit some substantive concepts in human rights law.
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.
Ismail, Noraini et al, ‘A Legal Perspectives of the Malaysian and International Law in Combating Domestic Violence Cases During Pandemic COVID-19’ (2023) 8(52) Journal of Islamic, Social, Economics and Development 161–170 Abstract: The Covid-19 pandemic has a significant likelihood of intensifying domestic violence. This paper examines the current legal framework for women’s protection of their social rights against domestic violence based on Malaysian and international law. The analysis is based on a qualitative and descriptive cross-sectional analysis of the governing statutes, reported cases, and data gathered from the administrative authorities. The issue is also examined from the perspective of the Qur’an and the Sunnah. The research concludes that the Domestic Violence Act 1994 and Penal Code serve as the primary legal framework for dealing with domestic violence cases. However, although various international legal instruments are in place, when it comes to implementation, it remains unclear whether such facilities are being fully utilised in individual communities or not. Therefore, this issue needs to be addressed. It is proposed that the principle rights of women as outlined in the Islamic law must be strengthened in the government policies as the impact is in line with the Sustainable Development Goals (SDG) Plan (2030) in terms of gender equality, promoting peace from any violence and inclusive societies as well as communities for sustainable environment and development.
Jalloh, Charles, ‘Pandemics and International Law: The Need to Strengthen International Legal Frameworks after the COVID-19 Global Heal Pandemic [Sierra Leone]’ (2021) 36(5) American University International Law Review 979–992 Introduction: I would like to begin by acknowledging the American University Washington College of Law and all its partners for organizing this timely symposium on ‘Pandemics and International Law: The Need for International Action.’ 1 The theme of this symposium is rather broad and, as we have heard already, there is much that can be said about it from various international law perspectives. I will not attempt to do that. Instead, I wish to offer brief comments on one question given the time restrictions for my remarks and this panel. I will focus specifically on the topic I was assigned. In essence, given this pandemic of a lifetime that we are experiencing today, the question I was asked to ponder is whether international law needs to be codified or progressively developed to address issues stemming from pandemics. By those key words, of progressive development and codification, I use them in the meaning given to them by the UN General Assembly in Article 15 of the Statute of the International Law Commission. There, ‘progressive development’ is defined, for convenience, as meaning the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States. The expression ‘codification of international law’ is used for convenience as meaning the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine. Both mandates are equally important and equally critical for the work of the ILC.
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.
Karacic, Jasna et al, ‘Failure of Health Diplomacy to Communicate Covid-19: Political, Ethical, Legal and Medical Perspective’ (2021) 9(2) Global Bioethics Enquiry 127–130 Abstract: The COVID-19 pandemic has demonstrated the vital importance of global solidarity to confront common public health warnings. Despite the expectations and responsibility of the World Health Organization (W.H.O.) in supporting countries to respond in a coordinated way and to bring together decisions aimed to jointly address the pandemic, it has an enormous global impact and has led to substantial misunderstanding worldwide.
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.
Kavanagh, Matthew M et al, ‘Increasing Compliance with International Pandemic Law: International Relations and New Global Health Agreements’ [2023] The Lancet (advance article, published online 4 September 2023) Abstract: Across multiple pandemics, global health governance institutions have struggled to secure the compliance of states with international legal and political commitments, ranging from data sharing to observing WHO guidance to sharing vaccines. In response, governments are negotiating a new pandemic treaty and revising the International Health Regulations. Achieving compliance remains challenging, but international relations and international law research in areas outside of health offers insights. This Health Policy analyses international relations research on the reasons why states comply with international law, even in the absence of sanctions. Drawing on human rights, trade, finance, tobacco, and environmental law, we categorise compliance mechanisms as police patrol, fire alarm, or community organiser models. We show that, to date, current and proposed global health law incorporates only a few of the mechanisms that have shown to be effective in other areas. We offer six specific, politically feasible mechanisms for new international agreements that, together, could create compliance pressures to shift state behaviour.
Kazemi, Hamid, ‘The Role of International Space Law in the Use of Space Technologies to Deal with Infectious Diseases- Covid 19’ [2023] Legal Research Quarterly (Advance article, published online 2 May 2023) Abstract: Infectious diseases, especially Covid-19, have spread rapidly worldwide in recent years and have caused severe human, financial, economic, and other damage to countries. Space technologies have been essential in dealing with the disease and providing services to all people. However, using the technologies raises some legal issues. Providing services and information from space technologies without discrimination among all countries and their availability will be crucial in curbing these diseases. Do the existing space laws present the necessary platform for using space technologies to confront diseases and develop international cooperation? Moreover, what legal regulations are necessary to improve the availability of information to everyone and protect privacy in the future? The international space community should develop new regulations and guidelines to monitor data transfer and international cooperation between countries. To achieve this goal, they should facilitate international cooperation in space information transmission for all countries and prevent privacy violations. While examining some principles of the existing international space laws that frame the use of space technologies to confront infectious diseases, this article discusses legal issues and provides solutions.
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.
Knox, Robert and Ntina Tzouvala, ‘International Law of State Responsibility and COVID-19: An Ideology Critique’ (2021) 39(1) The Australian Year Book of International Law Online 105–121 Abstract: Despite minimal prospects of success, international lawyers spent the first few months of the global pandemic discussing whether the rules of state responsibility could be invoked against states, especially China, for their acts and omissions regarding COVID-19. In this piece, we take these debates seriously, if not necessarily literally. We argue that the unrealistic nature of these debates does not make them irrelevant. Rather, we propose an ideology critique of state responsibility as a legal field. Our approach is two-fold. First, we argue these debates need to be situated within the rise of geopolitical competition between the US and its allies on the one hand and China on the other. In this context, state responsibility is always laid at the feet of one’s opponents. Secondly, we posit that my emphasising the role of states, recourse to state responsibility renders invisible the role of transnational processes of capitalist production and exchange that have profound effects on nature and set the stage for the emergence and spread of infectious diseases. Drawing from the work of the geographer Neil Smith, we argue against the ‘naturalisation’ of disasters performed much of the international legal discourse about COVID-19.
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 Abstract:
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)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.
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.
Liljeblad, Jonathan, ‘International Human Rights Law and the Protection of Medical Scientists against State Inference during COVID-19’ (2021) 39(1) The Australian Year Book of International Law Online 153–168 [pre-published version available on SSRN] Abstract: The global COVID-19 pandemic has hosted a rising trend of state interference in medical science research against the virus. Such illiberal actions are counterproductive to hopes of addressing the virus because they impede the operations of scientific inquiry and threaten the integrity of scientific findings. State efforts to interfere in pandemic science work involve constraints upon medical scientists researching the virus. Such constraints risk violating the human rights of the scientists involved in COVID-19 research. International human rights law provides means of protecting scientists against state interference, and the reach of international human rights instruments approaches a scale comparable to the global reach of the pandemic. As a result, the exercise of international human rights law on behalf of medical scientists against state interference furthers the global urgency to resolve the COVID-19 pandemic.
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, Anatoliy, ‘Pandemic as a Challenge to International and National Law’ [2021] (2) Customs Scientific Journal 44–51 Abstract: The article is devoted to the analysis of the impact of the pandemic caused by COVID-19 on human rights. The analysis is carried out through the prism of studying two practices: (a) the use by states in the new conditions of a specific instrument ‘derogations from the Covenant’; (b) interpretation by the courts of government anti-epidemic restrictions and prohibitions.
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?
Mbengue, Makane Moïse and Jean D'Aspremont (eds), Crisis Narratives in International Law (Brill, 2021) (OPEN ACCESS) Book summary: This volume offers a series of short and highly self-reflective essays by leading international lawyers on the relation between international law and crises. It particularly shows that international law shapes the crises that it addresses as much as it is shaped by them. It critically evaluates the modes of intervention of international law in the problems of the world. Together these essays provide a unique stocktaking about the role, limits, and potential of international law as well as the worlds that are imagined through international lawyers’ vocabularies.
- Chapter 1: Jan Klabbers, ‘The Love of Crisis’ 8-20
- Chapter 2 Iain Scobbie, ‘Crisis? What Damned Crisis?’ 21-33
- Chapter 3 Hélène Ruiz Fabri, ‘Crisis Narratives and the Tale of Our Anxieties’ 34-39
- Chapter 4 B.S. Chimni, ‘Crisis and International Law: A Third World Approaches to International Law Perspective’ 40-53
- Chapter 5: Frédéric Mégret, ‘Chapter 5 COVID and the Crisis Mode in International Legal Scholarship’ 54-61
- Chapter 6: Makane Moïse Mbengue, ‘Narratives of Solidarity in Times of Crisis: Tales from Africa’ 62-68
- Chapter 7: Jean d’Aspremont, ‘International Law as a Crisis Discourse: The Peril of Wordlessness’ 69-84
- Chapter 8: Anne Peters, ‘COVID-19 as a Catalyst for the (Re-)Constitutionalisation of International Law: One Health – One Welfare’ 85-99
- Chapter 9: Yuval Shany, ‘The COVID-19 Pandemic Crisis and International Law: A Constitutional Moment, A Tipping Point or More of the Same?’ 100-108
- Chapter 10: Eliana Cusato, ‘Beyond War Narratives: Laying Bare the Structural Violence of the Pandemic’ 109-121
- Chapter 11: Christian J. Tams. ‘Repetitive Renewal: COVID, Canons and Blinkers’ 122-131
- Chapter 12: Catherine Kessedjian, ‘International Law and Crisis Narratives after the COVID-19 Pandemic 132-138
- Chapter 13: Laurence Boisson de Chazournes, ‘Only Once … Upon a Time?’ 139-145
- Chapter 14: Edith Brown Weiss, ‘The Kaleidoscopic World Confronts a Pandemic’ 146-158
- Chapter 15: Mónica Pinto, ‘How Learned Are Our Lessons?’ 159-166
- Chapter 16: Benedict Kingsbury, ‘Hobbes and the Plague Doctors’ 167-172
- Chapter 17: Malgosia Fitzmaurice, ‘The Covid-19 Crisis, Indigenous Peoples, and International Law: A Vulnerability Perspective’ 173-181
- Chapter 18: Fuad Zarbiyev, ‘COVID-19 and Research in International Law’ 182-185
- Chapter 19: Iga Joanna Józefiak, ‘A Narrative of Crises from the Perspective of a Young Scholar’ 186-194
Abstract: This chapter examines the evolving implementation of the International Health Regulations (IHR) in responding to public health emergencies. Analyzing implementation obligations under global health law, Part II outlines the national and global governance expectations inherent in the IHR. Part III chronicles the evolving implementation of the IHR in responding to infectious disease threats since the establishment of WHO, with early efforts seen as largely ineffective in speaking to the emerging disease threats of a globalizing world. Drawing from the sweeping changes in implementation expectations promulgated by IHR (2005), Part IV examines the implications of the revised IHR in responding to a rapid succession of public health emergencies of international concern. Yet despite continuing advancements in IHR (2005) implementation over fifteen years, the COVID-19 pandemic overwhelmed the world, and Part V examines the limitations of the IHR in responding to this cataclysmic threat, raising an imperative for further reforms of global health law. As the world considers IHR revisions anew, with these revisions taking place amid an interconnected series of multisectoral reforms in global health law and governance, this chapter concludes that past limitations point the way forward in revising institutional mechanisms, ensuring IHR implementation as a foundation for global health security under global health law.
Meier, Benjamin Mason, Judith Bueno de Mesquita and Caitlin R Williams, ‘Global Obligations to Ensure the Right to Health: Strengthening Global Health Governance to Realise Human Rights in Global Health’ (2021) Yearbook of International Disaster Law (forthcoming) Abstract: The COVID-19 pandemic is reframing human rights in global health governance. International organisations have long sought to bring nations together in responding to global health threats; however, the United Nations (UN) system has faced limited compliance with its governance frameworks amidst increasing nationalism. In the pandemic response, the World Health Organization (WHO) has confronted isolationist obstacles to global solidarity, undermining efforts to advance human rights in global health. These structural impediments in a challenged global health governance landscape have raised an imperative to clarify extraterritorial human rights obligations, including global obligations of states and international organisations. In strengthening global health governance to realise human rights in global health, this article examines the changing landscape of extraterritorial human rights obligations in global health through an augmented WHO leadership role and a revitalised system of international organisations, re-centring global human rights obligations in global health governance. These global obligations provide a path to overcome nationalist challenges in the pandemic response, strengthening institutions of global governance to advance global health, global equity, and global solidarity.
Meier, Benjamin Mason, Roojin Habibi and Lawrence O Gostin, ‘A Global Health Law Trilogy: Transformational Reforms to Strengthen Pandemic Prevention, Preparedness, and Response’ (2022) Journal of Law, Medicine & Ethics (forthcoming) Abstract: This is a pivotal moment in the global governance response to COVID-19, with crucial global health law reforms being undertaken simultaneously in the coming years: the revision of the International Health Regulations, the implementation of the GHSA Legal Preparedness Action Package, and the negotiation of a new Pandemic Treaty. Rather than looking at these reforms in isolation, it will be necessary to examine how they fit together, considering: how these reforms can complement each other to support pandemic prevention, preparedness, and response; what financing mechanisms are necessary to ensure sustainable health governance; and why vital norms of equity, social justice, and human rights must underpin this new global health system.
Meier, Benjamin Mason, Victoria Matus and Maximillian Seunik, ‘COVID-19 Raises a Health & Human Rights Imperative to Advance a UN Convention on the Rights of Older Persons’ [2021] BMJ Global Health (forthcoming) Abstract: The COVID-19 pandemic has revealed the inequitable health harms and human rights violations faced by older persons, raising a need to support healthy ageing policy as a human rights imperative. However, international human rights law has long neglected the health-related human rights of older persons. Drawing from evolving advocacy efforts to advance the rights of older persons through the United Nations (UN), tentative initial steps have been taken at the regional level, with States in the Americas codifying intersectional rights obligations underlying health through the Inter-American Convention on Protecting the Human Rights of Older Persons. These international and regional efforts provide a foundation to advance the right to health for older persons. Amid an ongoing demographic transition and an inequitable pandemic response, the prospective UN Convention on the Rights of Older Persons provides a crucial opportunity to elaborate and uphold the international legal obligations necessary to facilitate healthy ageing.
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.
Miller, Russell A, ‘Pandemic as Transboundary Harm: Lessons from the Trail Smelter Arbitration’ (2023) 55(2) New York University Journal of International Law & Politics 259-337 Abstract: The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the rhetoric blaming China for the pandemic. Yet, if regulatory failure in China caused the pandemic, then those acts or omissions might qualify as a violation of the customary international law Transboundary Harm Principle. This Principle, which seeks to preserve states’ fundamental right to sovereignty while accommodating a spectrum of interstate or transboundary interaction, has become a foundational component of international environmental law. But at its core, the Transboundary Harm Principle establishes the risk of international law responsibility for harm caused by domestic regulatory failure. This article demonstrates the Principle’s application beyond environmental law and further applies it to the COVID-19 pandemic. The Trail Smelter Arbitration both articulated the relevant substantive law and also provided a model for fashioning an equitable remedy for violations of the Principle. That remedy accounts for harmed states’ contribution to the severity of the harm suffered. This framework—consisting of the Trail Smelter Arbitration’s substantive law and remedial procedure—confirms that the Transboundary Harm Principle is an appropriate international law solution to the question of China’s responsibility for the harm caused by COVID-19.
Misridaputri, Syifa Salsabila, Isis Ikhwansyah and Purnama Trisnamansyah, ‘Port Closure Due to the Covid-19 Pandemic in the Law of Carriage of Goods By Sea and Unidroit Principles of International Commercial Contracts’ (2023) 6(2) Riwayat: Educational Journal of History and Humanities_ _Abstract: Port closure as an effort to slow the spread of the Covid-19 virus has had various impacts, such as port congestion which has led to delays and drastically increased transportation costs. This study examines the impacts caused by port closures and legal remedies that can be taken based on international sea transport law. Losses due to port closures cannot be borne by the carrier based on the conventions of sea shipping law as long as the carrier can prove that the fault was not his own. The closure of the port can be categorized as a hardship, in which there are fundamental changes that affect the agreement, namely the increase in shipping costs and delays. efforts that can be made based on the UPICC are renegotiation, and if it fails, the parties can seek a dispute settlement through the courts. In implementing the agreement, the parties must prioritize the principle of good faith and prove that the losses incurred and losses did not originate from themselves.
Moghadasifar, Omid et al, ‘Investigating the Government Violation of the Origin of the Covid-19 Virus Epidemic from the Perspective of International Law’ (2022) 5(2) Political Sociology Research [unpaginated] Abstract: The present study aims to investigate the role of the source state in the pandemic of the Corona virus within the framework of the principle of responsibility of states. The main question of the article is: how can the behavior of the government of origin in the Corona crisis be subject to international law? The hypothesis that arises from this question is that the Chinese government’s non-transparent approach and irresponsible behavior at various stages of the coronavirus outbreak, including informing the World Health Organization, blames the government in terms of the rule of government responsibility. The findings of the study show that the source government, especially in relation to international health regulations, has not fulfilled its obligations and has not timely notified the organization of developments related to the corona outbreak. Accordingly, it has violated the issue of Corona from the perspective of international law, which could lead to fines and compensation for this country. The theoretical framework of the present article is the principle of state responsibility and the theory of compensation in the doctrine of international law and the method used in it is descriptive-analytical and based on the study of existing data and their interpretation.
Morag, Nadav, Impacts of the Covid-19 Pandemic: International Laws, Policies, and Civil Liberties (Wiley, 2022)Link to book information and contents on publisher website
Book summary: The wide array of legal and policy responses to the COVID-19 pandemic have significant implications regarding the functioning of countries and their respective societies. This book addresses the impact of international legislative and policy responses to the COVID-19 pandemic in a range of countries. To aid the reader in understanding country-specific developments, each chapter focuses on a specific country and addresses the legal frameworks and policy approaches used to support measures to prevent transmission and otherwise reduce the impact of the virus on society and the economy. Sample topics discussed in the work include: The effect certain policies may have on civil liberties, such as due process, and the right to privacy in specific countries The provision of public goods in the face of the pandemic Policymakers in public health agencies and other branches of government, along with academics studying global pandemic response, homeland security, and emergency management will be able to use this book as a comprehensive resource to understand the current state of COVID-19 policies around the world and the potential future effects of these policies.
Morrison-Dayan, Rachel, ‘Protecting the Right to Social Participation of Older Persons in Long-Term Care under Article 19 of the United Nations Convention on the Rights of Persons with Disabilities’ (2023) 23(2) Human Rights Law Review (advance article, published online 22 March 2023) Abstract: The COVID-19 pandemic has drawn public attention to the long-standing issues of social isolation and loneliness of older persons living in residential long-term care (LTC) and has increased awareness of the importance of social participation. This article aims to contribute towards a shift in the understanding of how the United Nations Convention on the Rights of Persons with Disabilities (CRPD) may be applied in aged-care. It argues that the CRPD, in particular Article 19 (Living independently and being included in the community), has considerable potential to protect the right to social participation. It is also argued that changes in LTC settings and support may assist in protecting this right. Furthermore, the participation of older persons in this process and cultural change within LTC provider organizations and the general community is crucial. However, applying the Convention in the aged-care context raises challenges that require further consideration by human rights mechanisms.
Mossop, Joanna, ‘Law of the Sea and the Pandemic: Humanitarian Principles under Siege?’ (2021) 39(1) The Australian Year Book of International Law Online 78–90 Abstract: In the COVID-19 pandemic two particular issues have arisen in relation to borders and the law of the sea: the right of ships—particularly cruise ships—to enter port and the ongoing restrictions on seafarers aboard merchant ships. In these cases, the sovereign interests of states in preventing the spread of a dangerous virus have been pitted against the humanitarian interests of those onboard the vessels. This article first describes the humanitarian concerns created by states’ responses to the emergence of COVID-19. It then discusses the various legal principles that apply to the situation, primarily the International Health Regulations, the doctrine of distress and the Maritime Labour Convention. Finally, it considers whether any lessons can be learned from this experience to hopefully lessen humanitarian problems if another pandemic happens in the future.
Mubiala, Mutoy, ‘Africa and Pandemics: Towards a Regional Health Security Regime’ (2022) 3(1) Yearbook of International Disaster Law Online 71–91 Extract from Introduction: African regional and sub-regional organizations have played an important role in the development of a regional approach to international law. This relates to most fields of this discipline, including international health law. This article examines the institutional aspects of African regionalism in this field at both sub-regional and regional levels. In particular, the article examines and evaluates the respective roles of the Regional Economic Communities, with special reference to the Economic Community of West African States (ECOWAS) specialized health agency, the West African Health Organization (WAHO) and the African Union (AU) Centre for Disease Control and Prevention (Africa CDC) in their responses to the recent pandemics, including the Ebola outbreaks in West Africa (2014–2016) and the Democratic Republic of the Congo (DRC), as well as their intervention in the context of the COVID-19 pandemic. The article evaluates their contribution to the development of a regional health security regime and to the implementation of the emerging African principle of ‘Responsibility to assist’ (neologism) in the context of the above-mentioned pandemics. The paper also examines how African regional human rights mechanisms have addressed the human rights challenges faced by African States in the same context, with special attention to the promotional activities of the African Commission on Human and Peoples’ Rights. The paper respectively addresses the normative, institutional and operational aspects of the emerging African health security regime.
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.
Murase, Shinya, ‘International Law-Making on the Prevention and Control of Epidemics’ (2022) 24(3) International Community Law Review 187–208 Abstract: International law-making takes various forms. The UN General Assembly has a general mandate for new law-making, but it has not engaged in major treaty making for some time. The International Law Commission (ILC), charged with codification and progressive development of international law, has not in recent years dealt with topics that are relevant to the pressing need of the international community as a whole. In such an environment, it is remarkable that the Institut de Droit International (IDI), the 19th century type of an old institute, has embarked on the law-making activity on the critical issue of prevention and control of epidemics with the unusual sense of urgency, adopting in August 2021 a Resolution composed of 17 Draft Articles and Preamble. It is hoped that a comprehensive framework convention on epidemics will be elaborated on the basis of this Resolution in the near future.
Murase, Shinya and Suzanne Zhou (eds), Epidemics and International Law (Brill Nijhoff, 2021) Selected contents:
- Chapter 2: Shinya Murase. ‘Interrelationship among relevant rules of international law on epidemics’19
- Part II – History and Theory of International Law Relating to Epidemics 43
- Chapter 3: Maria Adele Carrai, ‘The historical emergence of international health regulations’. 45
- Chapter 4: Raphael Oidtmann, ‘The concept of borders in international health law’ 59
- Chapter 5: Otto Spijkers, ‘Value-based norms as the foundation for the pursuit of health in global solidarity’79
- Chapter 6: Shaimaa Abdelkarim, ‘Global human rights praxis in public health and the response to Covid-19’117
- Part III – Global Health Governance 139
- Chapter 7: Gail C. Lythgoe, ‘The law of global governance: understanding the institutional architecture and practices of epidemic governance’ 141
- Chapter 8: Ana Cristina Gallego Hernández, ‘International obligations before health emergencies’167
- Chapter 9: Margherita Melillo, ‘When a delay is a denial: the role of scientific evidence in the world health organization’s response to the Covid-19 pandemic’ 189 pre-print chapter available on SSRN]
- Chapter 10: Olha Bozhenko, ‘Information sharing on epidemics: making the world a healthier place by improving the reporting regime’ 205
- Chapter 11: René Fabrizio Figueredo Corrales , ‘Who is WHO watching? WHO’s surveillance competence under the 2005 international health regulations to prevent and control the international spread of infectious diseases’ 229
- Chapter 12: Ling Chen, ‘International cooperation and assistance as legal obligations in epidemics and disasters’ 249
- Part IV – Regional Framework 269
- Chapter 13: Jose Yepez, ‘Legal issues of the institutional framework in Latin-America concerning the Covid-19 pandemic’ 271
- Chapter 14: Bethlehem Arega Asmamaw, ‘Development of international health law: the role of the African union’ 295
- Part V – Human Rights and Health 317
- Chapter 15: Fernando Arlettaz, Restrictions on civil rights in time of epidemics’ 319
- Chapter 16: Remzije Istrefi, ‘Emergency state powers and human rights’ 343
- Chapter 17 Cecilia I. Silberberg, ‘Legal strategy to safeguard the right to personal data protection in future epidemics’ 367
- Chapter 18: Luciano Bottini Filho, ‘State positive obligations and the international right to health in epidemics: how much should be enough?’389
- Part VI – Environment and Epidemics 409
- Chapter 19 Iraida Angelina Giménez, ‘Epidemics and climate change in international law’ 411
- Chapter 20: Xiaoou Zheng, ‘Understanding the interrelationship between biodiversity and epidemics from the perspective of international environmental law’ 435
- Chapter 21: Andrew Van Duyn, Transboundary environmental impact assessments and the international control of infectious disease spread’ 449
- Part VII – Investment and Transport Law 473
- Chapter 22: Sophie Davin, ‘Epidemics and investment law: a host state’s perspective’ 475
- Chapter 23: Maria Emilynda Jeddahlyn Pia V. Benosa, ‘Covid-19: a vicious wave for maritime transport’ 499
- Part VIII – Epidemics and Peace and Security 523
- Chapter 24: Aline Almeida Coutinho Souza, ‘The new facet of United Nations peacekeeping missions: recognizing global health risks as a threat to international peace and security’ 525
- Chapter 25: Craig D. Gaver, ‘What role for the UN Security Council in epidemics?: A Covid-19 case study’ 545
- Chapter 26: Mulry Mondélice, ‘The UN and the Haiti cholera case: Articulating the rule of law, immunities and responsibility of international organizations in international law’ 565
- Part IX – Responsibility and Liability 589
- Chapter 27: Siamak Karimi, ‘Liability of the state of origin regarding the outbreak of epidemics’ 591
- Chapter 28: Alex Silva Oliveira, ‘Reflections on the concept of responsibility in epidemics’ 615
- Chapter 29: Yu-Hsiang Huang, ‘Is the WHO responsible for a mismanagement of the epidemic? Conceptualizing mandate, power and obligation’ 635
- Part X – Dispute Settlement 657
- Chapter 30: Zhang Maoli, ‘The role of scientific evidence in inter-state dispute settlement relating to epidemics’659
- Chapter 31: Anna Facchinetti, ‘State immunity from civil jurisdiction in epidemic-related cases’ 689
Abstract: This article examines the coronavirus counter-measures adopted by East African states from a legal perspective. The focus is whether the adopted measures infringe on the provisions of the Treaty for the Establishment of the East African Community (EAC) and domestic legislations, including the countries’ constitutional provisions. The legal recourse for East African citizens in instances where domestic remedies have failed will be examined in light of the role of the judicial organ of the East African Community, the East African Court of Justice (EACJ). An examination will be made on protection of human rights under the EAC Treaty and the jurisdiction of the EACJ in adjudicating on allegations of human rights violation. This contribution will proceed to debate on the existing relationship between international law and domestic laws; whether international law is superior to domestic law and whether international bodies can entertain a complaint by an individual or an institution on violation of human rights where redress has not been exhaustively sought through domestic legal systems.
Najandimanesh, Heybatollah, ‘International Criminal Law and Epidemic Viruses: A Case Study of Covid-19’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: Some parts of treaty and customary provisions of international law, for the sake of protection of international public order, relates to individual criminal liability. Hence, a new trend as international criminal law has been developed. Rules of responsibility, whether in the area of criminal responsibility or otherwise, are regarded as secondary ones. One of the important issues of international law, especially international human rights law, is “health”. In this regard, rights for human beings and, consequently, duties for governments are envisaged. The prevalence of some diseases and viruses, especially Covid-19, has led to more attention being paid to international health law and its relevance to other areas of law. The present paper examines the relationship between international criminal law and the spread of pandemic viruses with emphasis on Covid-19. Examining the relationship between “health” and “international peace and security”, “well-being of the world”, and “international human rights”, the authors tried to deal with the possibility of applying international criminal law in cases of violations of the right to health due to the spread of pandemic viruses.
Nasu, Hitoshi, ‘The “Infodemic”: Is International Law Ready to Combat Fake News in the Age of Information Disorder?’ (2021) 39(1) The Australian Year Book of International Law Online 65–77 Abstract: This article considers the readiness of international law to protect States from information operations that are launched as the means of disrupting government response to the spread of infectious diseases, such as COVID-19. It examines both the external- and internal-facing dynamics for international regulation of misinformation, with the focus on the principle of non-intervention as an external regulation of misinformation under general international law and freedom of expression guaranteed under human rights treaties for internal regulation.
Navari, Ali, ‘COVID-19 and the International Obligations of States Concerning Control of the Pandemic Diseases’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: In the vicissitudinous history of public health in the world, emerging and reemerging pandemic diseases as one of the realities of social life according to its context and time have repeatedly afflicted human civilizations. The rapid outbreak of these diseases on a global scale without respect for the sanctity of national borders is a natural result and the logical consequence of thousands of kinds of solidarity and interdependence between states and nations. The spread of Covid-19 at the beginning of the third decade of the 21st century, and the different reactions of states to the outbreak of this disease in the realm of their territory, indicate an astonishing dispersion to confront this insurgent virus. Today, there is no doubt that any effective measure to control and eradicate pandemic diseases such as Covid-19, has a close link with the cooperation and coordination of members of the international community. The international legal system has played a prominent role in international efforts to control contagious and pandemic diseases. Although different and complex aspects of the relationship between the international legal system and pandemic diseases have involved a range of different legal regimes, with a little contemplation one can determine the closeness and the intersection between their requirements. The present essay seeks to provide an answer to the question of what international obligations the international legal system has concerning the control of pandemic diseases, especially Covid-19? The findings of the present study show that the 2005 International Health Regulations,
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.
Nifosi-Sutton, Ingrid, ‘Realising the Right to Health during the COVID-19 Pandemic: An Antidote to the Pandemic and the Catalyst for Fulfilling a Long-Neglected Social Right?’ (2022) 3(1) Yearbook of International Disaster Law Online 126–153 Extract from Introduction: Since the inception of the COVID-19 pandemic competent authorities in many States have undertaken herculean efforts to protect the health, safety and lives of affected persons and communities. Yet the path to the effective management and eventual defeat of the novel coronavirus is arduous, has an immense human and economic cost, and is prone to setbacks. Against this background this article posits that implementation of the internationally recognised right to health can contribute to an effective management of the COVID-19 pandemic, while the pandemic itself may constitute the catalyst for realising the right to health, a ‘long-ignored and overlooked […] social [right]’
Nóra, Béres, ‘International Aspects of the COVID-19 Health Crisis with Special Regard to Human Rights’ in Zoltan Nagy and Attila Horváth (eds), Emergency Powers in Central and Eastern Europe : From Martial Law to COVID-19, (Central European Academic Publishing, 2022) 33 Abstract: This chapter provides an overview of the most significant international aspects of the COVID‑19 pandemic, focusing primarily on states of emergency and human rights. After presenting the pandemic as a health and economic crisis, the chapter offers a comprehensive analysis of the derogation clauses of two human rights treaties: Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, hereafter, ECHR or Convention) and Article 4 of the International Covenant on Civil and Political Rights (hereafter, ICCPR or Covenant). These two treaties were selected because of their impact on the development of European and universal human rights laws and their importance as models for other human rights treaties, such as the European Social Charter (ESC) and the American Convention on Human Rights (Pact of San José, hereafter, ACHR). The Central European states examined thoroughly in this book are parties to both of these human rights treaties, so their obligations under international human rights laws should be explained. As for the relevance and the topicality of the chapter’s subject matter, in times of the most severe health crisis of the last hundred years5 it is no exaggeration to say that issues related to states of emergency are extremely timely. Since the beginning of the COVID‑19 pandemic, many states in Europe and worldwide, have declared states of emergency; human rights need exceptional highlights in the shadow of such global health threats.
Norouzi, Nima, ‘Legal Studies Over the Impacts of the COVID-19 Pandemic on International Peace and Security’ in Carla Sofia Vicente Negrão, Isabel Guerreiro Pimentel Maia and João António Furtado Brito (eds), Multidisciplinary Approaches to Organizational Governance During Health Crises (IGI Global, 2023) 153–168 Abstract: The main focus of this study is on the topic of the global epidemic of Covid-19 and international peace and security. The practice of the council indicates the expansion of its competencies and its extension from military to civilian threats. The council has twice before adopted resolutions on AIDS and Ebola, which have deemed the situation a threat to international peace and security. If the council wishes to apply the same logic to the description and assessment of the Covid-19, it will, as in the previous two cases, declare it a threat to international peace and security, given the extent of the spread of the disease. However, the Security Council became passive in the wind, and more than three months after the announcement of Covid-19 as a global epidemic by the World Health Organization, with the passage of UNSCR 2532 dated 1 July 2020, it considered international peace and security.
Norouzi, Nima and Elham Ataei, ‘Covid 19 in the Face of Contemporary International Law’ (2021) 8(2) Brawijaya Law Journal [no page information] Abstract: The outbreak of Covid-19 is an international crisis that has been unprecedented for the past hundred years. The virus was first reported in Wuhan, China, in late 2019 and gradually spread worldwide. In such circumstances, the effectiveness of international law in protecting human lives and promoting the right to health has been severely tested. More importantly, in the words of Michel Bachelet (A UN official), the Covid-19 has become a benchmark for the international community. This article will analyze how international law deals with the Covid-19 crisis in several areas: First, the World Health Organization’s role as the main body responsible for protecting human healthcare in the face of the Covid-19 outbreak will be analyzed. Second, the international responsibility of States in guaranteeing the right to health will be assessed to determine the effectiveness of international law. Third, the suspension of human rights abuses due to the Covid-19 outbreak emergency will be tested in the international human rights system. Finally, the performance of the UN Security Council in dealing with this pandemic is examined. In each area, the question is to what extent the current structure of international law effectively deals with international crises and preserves human dignity.
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.
Oamen, Philip and Eghosa Ekhator, ‘The Impact of COVID-19 on the Socio-Economic Rights of Older Persons in Africa: The Urgency of Operationalising the Protocol on the Rights of Older Persons’ (2021) 21(2) African Human Rights Law Journal 782–811 Abstract: Since the outbreak of the COVID-19 pandemic across the world, it has been reported that older persons have suffered acute hardship and fatalities more than any other age group. According to the World Health Organisation the fatality rate among older persons is five times the global average, and the United Nations has predicted that the mortality rate could climb even higher. The situation is aggravated on the African continent as a result of a shortage of medical personnel and other resources, as well as inadequate palliative measures to address the issues around the pandemic. Despite the provisions in the African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on the Rights of Older Persons in Africa which seek to provide some safety nets, many of these senior citizens continue to suffer untold socio-economic hardship. Adopting an analytical and doctrinal methodology, this article examines the Protocol, the International Covenant on Economic, Social and Cultural Rights and several United Nations policy documents aimed at realising the socio-economic rights of older persons. The article finds that there is a lack of political commitment to operationalise the provisions of the Protocol, as evinced by the limited number of countries that have ratified it since its adoption in 2016. It comparatively engages with the provisions of the Inter-American Convention on the Rights of Older Persons to argue that, beyond the normative framing of these rights in Africa, there is a need for deliberate and genuine commitment by governments in Africa, if the rights are to be realised. The article advocates international, regional and national cooperation and calls for a more liberal judicial approach, to ensure that the Protocol’s ‘paperisation’ of the rights of older persons does not lead or continue to lead to their pauperisation.
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.
O’Callaghan, Elaine, ‘Return Travel and Covid-19 as a Grave Risk of Harm in Hague Child Abduction Convention Cases’ (2021) 17(3) Journal of Private International Law 587–600 Abstract: Since February 2020, courts have been faced with many novel arguments concerning the Covid-19 pandemic in return proceedings under the ‘grave risk exception’ provided in Article 13(1)(b) of the 1980 Hague Convention. This article presents an analysis of judgments delivered by courts internationally which concern arguments regarding the safety of international travel in return proceedings during the Covid-19 pandemic. While courts have largely taken a restrictive approach, important clarity has been provided regarding the risk of contracting Covid-19 as against the grave risk of harm, as well as other factors such as ensuring a prompt return despite practical impediments raised by Covid-19 and about quarantine requirements in the context of return orders. Given that the pandemic is ongoing, it is important to reflect on this case law and anticipate possible future issues.
Ogg, Kate and Olivera Simic, ‘Becoming an Internally Displaced Person in Australia: State Border Closures during the COVID-19 Pandemic and the Role of International Law on Internal Displacement’ (2022) Australian Journal of Human Rights (forthcoming) Abstract: In response to COVID-19, Australian states and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.
Ogg, Kate and Chanelle Taoi, ‘COVID-19 Border Closures: A Violation of Non-Refoulement Obligations in International Refugee and Human Rights Law?’ (2021) 39(1) The Australian Year Book of International Law Online 32–48 [pre-published version available on SSRN] Abstract: COVID-19 has presented a number of challenges for the international refugee protection regime. An issue that has received little attention is the relationship between states tightening their borders in an effort to reduce the spread of COVID-19 and their non-refoulement obligations. This raises the question of how international law responds when non-refoulement obligations may conflict with other international human rights such as the rights to life and health. Further, the legal analysis of whether a particular COVID-19 border policy is in violation of non-refoulement obligations must take into account how the travel restriction will be implemented. This article provides an overarching analysis of non-refoulement provisions in international refugee and human rights law and which COVID-19 international travel restrictions may be in breach of these obligations. We examine different types of COVID-19 travel restrictions and argue that many are undoubtedly violations of non-refoulement, but others raise unsettled questions of international law. Nevertheless, there is jurisprudence and scholarship to support the proposition that a state’s non-refoulement obligations can be triggered even in these more contested scenarios.
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 Abstract:
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.
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.
Oral, Nilüfer, ‘Pandemics and International Law: The Need for Action [Turkey]’ (2021) 36(5) American University International Law Review 1021-1027 Introduction: As someone who has actually survived two major earthquakes, what we are living through now with the pandemic is a level ten earthquake—devastating and upheaving our lives in so many different ways. As my colleague Patricia Galvao Teles noted, this level of pandemic is a collective experience that we have not seen since a century ago with the Spanish Flu. It has demonstrated to us, as happens in disasters in general, the structural deficiencies of our current system. My colleagues have outlined some of these deficiencies; I will reiterate some of those noted previously but frame this issue in a format that speaks to whether we need an additional framework to address pandemics. I will address—and reiterate—much that has already been said today, specifically on whether there is a need for an instrument of a comprehensive nature, such as a treaty, to address the pandemic. I will then follow with a few thoughts on how, if such an instrument is necessary, it can be created.
O’Regan, Catherine, ‘Equal Access to Vaccines: Exposing the Limits of International Human Rights Law?’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 213 Abstract: The Covid-19 pandemic has caused millions of deaths since 2020. The virus’ capacity to produce variants that evade immunity has meant that the best way to prevent further deaths is through ensuring that as many people as possible worldwide are vaccinated. Production of vaccines is reaching the point where it could meet global demand, if vaccines were equitably distributed. So far, however, vaccination rates have been highest in the developed world, and people in developing countries, especially Africa, remain woefully under-vaccinated. This article considers whether international human rights law can contribute to ensuring equal access to vaccines. It concludes that although the provisions of the International Covenant on Economic, Social and Cultural Rights would support equal access to vaccines, there are various reasons why international human rights law may not be effective in securing equal access to vaccines. These include not only the state-centric approach of international human rights law and its weak enforcement mechanisms, but also the strong international law protection for patents under the World Trade Organization (WTO)’s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). Nevertheless, important steps have been taken by new institutions of global health governance, such as the Global Agency for Access to Vaccines (GAVI) and Coalition for Epidemic Preparedness Innovations (CEPI), to ensure equal access to vaccines but much work still needs to be done. The chapter concludes that the Covid-19 pandemic has illustrated how inequality between countries, as well as within them, can be exacerbated by a global health crisis.
Orentlicher, Diane, ‘Ensuring Access to Accurate Information and Combatting Misinformation’ (2021) 36(5) American University International Law Review 1067–1086 Extract from Introduction: What, then, accounts for disturbingly high levels of vaccine hesitancy? And how is international law relevant? After briefly addressing the first question, I take up the questions whether international law adequately equips us to address this challenge, and whether a new treaty on pandemics could helpfully strengthen the existing framework for doing so. First, it should be noted that, while this paper focuses on public acceptance of vaccines, much of my analysis is relevant to other measures that are critical to preventing and ending pandemics.
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.
Patrono, Mario, ‘International Law and Global Politics in a Post-Pandemic World: Homo Sapiens?’ (2021) 52(4) Victoria University of Wellington Law Review 897–936 Abstract: This article discusses the Coronavirus pandemic: A deep wound destined, sooner or later, to heal, or instead sow the seed of a global revolution? The first part examines the history of war and peace among nations to propose the idea of an International Court of Justice endowed with compulsory jurisdiction as the first step towards the creation of a world State. The second part further considers a changed New Global Order in the face of crises.
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.
Pavone, Ilja, Global Pandemics and International Law: An Analysis in the Age of Covid-19 (Routledge, 2023) Book summary: This book reviews the efficacy of Global Health Law, assessing why its legal framework based on the International Health Regulations did not represent a valid tool in the containment of modern global pandemics such as COVID-19. The book provides an introduction to the international legal framework surrounding epidemics and pandemics and the main global governance issues that have been generated by the COVID-19 outbreak. It highlights the main shortcomings of Global Health Law, while also including practical proposals to improve the WHO’s mechanism to prevent and respond to future disease outbreaks, such as the New Pandemic Treaty. Emphasis is placed on what has not worked in the international, regional and national responses to COVID-19. It is argued that the pandemic has shed light on the weaknesses of global and domestic health law. By identifying legal gaps and providing legal arguments, the book contributes to the historical and conceptual foundation as well as the practical development of international law in the new age of COVID-19, with the ultimate goal of stimulating legal reform in this vital new era. The work will be essential reading for academics, researchers and policy-makers working in International Law, Health Law, Environmental Law, Human Rights Law, Biolaw, and the Law of International Organizations.
Perehudoff, Katrina and Jennifer Sellin, ‘The Right to Science as a Guidepost for Fair Access to COVID-19 Vaccines: Investigating the Interpretive Role of the United Nations Committee on Economic, Social and Cultural Rights’ (2022) 24(2) Health and Human Rights Journal 191–204 Abstract: Facing the unmet need for new, affordable medicines for public health crises, how should states’ duty to ensure that everyone shares in the benefits of science be understood in relation to pandemic vaccine supply, and how has the United Nations Committee on Economic, Social and Cultural Rights monitored the implementation of this right? In this paper, we examine the contours and content of state obligations with regard to pandemic vaccine supply under the right to science (article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights), focusing on three aspects of state obligations: mobilizing public resources for developing and disseminating the benefits of scientific progress in areas of public health need; preventing unreasonably high medicines prices; and international cooperation, particularly in a globalized health emergency. The committee regularly assesses state parties’ implementation of their obligations under the covenant, culminating in the issuing of concluding observations, which often serve as a basis for the next round of periodic reporting by states and can thereby direct future state action. Our analysis of the committee’s concluding observations reveals that the committee has inconsistently applied its own guidance on the right to science regarding medicines and intellectual property in these monitoring exercises. These findings inform a rights-based response to medical innovation for health crises and advance the Sustainable Development Goal target on medicines research and development.
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.
Permatasari, Viyani Annisa, Abdul Maasba Magassing and Iin Karita Sakharina, ‘Responsibility of the World Health Organization in Dealing with the Covid-19 Outbreak According to International Law’ (2022) 4(2) Awang Long Law Review 446–454 Abstract: This research aims to analyze WHO’s responsibility in overcoming the Covid-19 pandemic according to International Law and analyze the form of international cooperation in overcoming the Covid-19 pandemic. The study uses normative juridical research with statute and case approaches are used in this paper. The legal research materials are international conventions, legal literature, international and national law journals, and legal research materials from the internet. The results showed that WHO in the pandemic era was morally responsible. Through the socialization of health protocols by international standards, campaigning for a healthy lifestyle, good sanitation, and distribution of vaccines. The distribution of vaccines has not been amply enjoyed evenly, especially in developing countries. Some countries are affected by inequality in distributing vaccines by developed countries. Thus, international cooperation between states or a state and World Health Organization (WHO) has not achieved vaccination equality. One country that should be responsible for the losses to countries around the world is Tiongkok, as the origin of the pandemic Covid-19. According to the principles of international law, a sovereign state cannot be put on trial by another state with the same status. Furthermore, the responsibility that can hold for Tiongkok is in the form of an apology statement to the international community and conducting an in-depth investigation of the origin of the Coronavirus first appeared.
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.
Pham, Hanh Hong and Huong Thi Thu Phung, ‘Invoking COVID-19 to Suspend or Terminate the Operation of a Treaty’ in Normann Witzleb (ed), Contract Law in Changing Times (Routledge) 193–209 Abstract: According to the principle of pacta sunt servanda, a state is obliged to implement in good faith the international treaties to which it is a party. This is one of the fundamental obligations of the party, widely recognised in both the form of international treaties and international custom. However, in certain cases, international law still allows a party to suspend or terminate the implementation of international treaties which it has signed to. Specifically, under the 1969 Vienna Convention on the Law of Treaties, a party may invoke the provision of a fundamental change of circumstances to suspend or terminate the performance of a treaty when it satisfies the certain conditions. The purpose of this chapter is to answer the question of whether a party can invoke COVID-19 as a fundamental change of circumstances to temporarily suspend or terminate the operation of a treaty. First, the authors examine the conditions of the 1969 Vienna Convention on the fundamental change of circumstances in relation to COVID-19 to consider the possibility of invoking COVID-19 as a fundamental change of the situation. Moreover, the chapter will propose some cases where countries, including Vietnam, can cite COVID-19 as a basis for temporarily suspending the operation of the treaty without being considered a violation of the pacta sunt servanda principle.
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.
Plagbe, Philippe, ‘Use of State of Emergency in Response to the COVID-19 Sanitary Crisis: Safeguards and Proposals to Deal with the Pandemic of Human Rights Abuses’ (SSRN Scholarly Paper No 4469639, 15 December 2021) Abstract: The virulence of the Covid 19 pandemic has led to a massive recourse to a state of emergency by states around the world. Although the state of emergency has been extensively framed in major international and regional human rights treaties and in numerous documents produced by international human rights organizations, the possibility of a state of emergency in the event of a pandemic has remained under debate. This article discusses the conditions that might justify a state of emergency in the event of a pandemic and the measures or requirements imposed by international human rights law. It also proposes alternative measures to the use of a state of emergency and provides justifications for them. This article also makes recommendations for strengthening the international human rights protection framework in the event of a state of emergency, particularly in the event of a pandemic.
Pm, Hilton Tarnama and Belardo Prasetya Mega Jaya, ‘The Effectiveness of the World Health Organization (WHO) in Overcoming the Covid 19 Pandemic’ (2022) 21(1) Pena Justisia: Media Komunikasi dan Kajian Hukum 18–45 Abstract: The Covid 19 outbreak has caused a lot of casualties. WHO as an international organization whose goal is to achieve health at the highest level has a responsibility to mitigate the spread of the virus and its victims. The authority possessed by WHO based on international law is effective in overcoming the covid 19 pandemic. All of the categorizations to assess the effectiveness of WHO can be fulfilled by WHO while showing that WHO has succeeded in overcoming the Covid 19 pandemic.
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 II’ The 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.
Poorhashemi, Abbas, ‘International Law and Global Governance’ (2022) 3(5) CIFILE Journal of International Law 70–74 Abstract: This article aims to describe and analyze the challenges and opportunities for the development of international law. It attempts to provide some knowledge regarding global issues that requires an immediate collective response from the international community. Creating a better world for present and future generations require measures and anticipation of future crises (environmental challenges, global warming, human rights, health issues, discriminations, demographic growth, etc.). Significant transformations are taking place in the world, and that they will require a new approach to global governance. COVID-19 pandemic had and will have profound and lasting economic, political and social consequences in every corner of the globe. However, international law as a body of law that governs relations between states, international organizations and private persons exposes its vulnerabilities. Recent developments in the international community have made awareness of international law necessary and inevitable as the fully effective law of a fully functioning global society.
Prakasa, Satria Unggul Wicaksana et al, ‘Responsibility of States About Pandemic COVID-19: International Law Review’ (2022) 13(2) Jurnal Hukum Novelty 158–170 Abstract: This research focused on analyzing responsibility of States about COVID-19 pandemic. The concept of international responsibility could be interpreted as a relation between the state sovereignty in national legal mechanism, and also implementation of the principles of the international law in the other sides to fix it about internationally wrongful act. Especially how states contribution to prevent, vaccines, prosperity/ social aid, and health services for people in its states. This article argued that strong relations regarding state responsibility in the face of international legal mechanisms, through international cooperation mechanisms as well as diplomatic approaches shall be prioritized, to identification regarding internationally wrongful act. Then the fulfilment of basic rights of citizens during COVID-19 pandemic such as access to health services, vaccines, and socio-economic consequences are responsible for the country. Parties that can sue the state in international liability can be from state actors and non-state actors. China as a based on Covid-19 are spread around the world are bears some international responsibility for the unquantifiable damage sustained as a direct result of the state having failed to contain the virus, and to notify the international community of its existence. Therefore, judicial mechanisms through the UN mechanism or outside the UN Mechanism to dispute settlement mechanism.
Putra M, Hilton Tarnama and Jarkasi Anwar, ‘China Responsibility in Case of Covid 19 Pandemic Under International Law’ (2021) 4(2) Nurani Hukum: Jurnal Ilmu Hukum 101–113 Abstract: Pandemic COVID-19 was start from Wuhan, China then spread to the rest of the world. Under international law of public health, states have obligations to cooperate in tackling international health emergency. WHO Constitution and IHR confirms those obligations in which state denied its will arise state responsibility. The purpose of this research is to elaborate state obligations under international law to handle COVID-19 and particularly to China. This research use normative legal research method which means to analysis international law norm in practice. The results of this research are, first there are several obligations to state in handle COVID-19 such as to cooperate, to notify WHO and to made domestic regulation. Second, China is not responsible for COVID-19 case because China did not breach any international obligations under international law.
Putri, Ria Wierma et al, ‘The Paradox of the International Law Development: A Lesson from Covid-19 Pandemic Management’ (2023) 7(1) Lex Scientia Law Review [no page information] Abstract: By the year 2019 to early 2022 the world has encountered a health emergency due to the COVID-19 pandemic. Although the present Covid-19 situation is considered to be under control and countries are progressively recovering from the epidemic, there are a number of lessons that may be derived and studied as part of the development of international law. The article further observes the role of World Health Organization as a primary international organization responsible for keeping the world’s health order. Following the effort of Covid-19 management, various measures have been enforced as global government regime efforts, such as quarantine, travel restrictions, and vaccination programs. However, the article highlight that there are many factors have caused obstacles in handling pandemic problems, ranging from the state’s capacity to overcome the pandemic’s impact to the ideology disparities in implementing global mandates. In this matter, there is a tendency by states which refuse to subject to the general mandate from WHO under the argument that their national interest comes first. This issue then determined that the problem of the Covid-19 pandemic was no longer a health issue but an issue in the evolution of the global legal order. This study will further discuss the efforts taken by WHO as the primary international health organization to combat pandemic issue and analyze to what extent has the management of the COVID-19 pandemic affects international law development.
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.
Qiu, Diana, ‘Human Rights Protection under the ICCPR: When Can and Should States Derogate? A Critical Analysis in the Context of New Zealand’s COVID-19 Response’ (2023) 27(5) The International Journal of Human Rights 844–871 Abstract: Public emergencies like global pandemics subject human rights to extraordinary vulnerability. The International Covenant on Civil and Political Rights (ICCPR) permits States to restrict rights by enacting permissible limitations on them at any time and by derogating from their protection in emergencies. This article argues that States should rely on the ICCPR’s permissible limitations provisions rather than lodge formal derogations in times of crisis, unlike what many States have done during the COVID-19 pandemic. It draws upon New Zealand’s highly successful public health response to support this proposition. The article argues that the accountability machinery for compliance with States’ rights obligations is stronger when permissible limitations are enacted. Where States do rely on the right to derogate, the article suggests some improvements to existing international accountability mechanisms. These include enhancing the analysis to be contained in notices of derogation and advance capacity-building to enable States to better decide if derogation is necessary in the first place. Ultimately, the article argues that keeping States within the international human rights system is ideal. This can be achieved through reliance on the flexibility built into the ICCPR via its permissible limitations provisions rather than its right of derogation.
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.
Rana, Shruti, ‘Seismic Shifts: The COVID-19 Pandemic’s Gendered Fault Lines and Implications for International Law’ (2021) 39(1) The Australian Year Book of International Law Online 91–104 Abstract: The Covid-19 pandemic and related shutdowns created seismic shifts in the boundaries between public and private life, with lasting implications for human rights and international law. Arriving just as the international legal order was wobbling in the wake of a populist backlash and other great challenges, the pandemic intensified fault lines of marginalisation and state action, amplifying the forces that had already left the liberal international order in crisis and retreat. This article examines the pandemic’s impacts on the international legal order through a gendered lens. It argues that in the short-term, the pandemic has reinforced public-private divides in international law, reinvigorating previous debates over the role of the state in protecting its people from harm. It argues that in the long-term, these developments threaten to unravel the most recent gains in international law and global governance that have supported and expanded the recognition of human rights to marginalised groups. Left unaddressed, this unraveling will further entrench such divides and contribute to the further retreat of the liberal international order. Examining these fault lines and their implications can help us re-imagine a post-pandemic international legal order that offers more protection for human rights, even as multilateral institutions and cooperation sputter or fail.
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.
Richens, R Chantz, ‘Privacy in a Pandemic: An Examination of the United States’ Response to COVID-19 Analyzing Privacy Rights Afforded to Children under International Law’ (2021) 28(2) Willamette Journal of International Law and Dispute Resolution 244–290 Extract from Introduction: The important nature of privacy rights and the national interest in these rights, as caused by the COVID-19 pandemic, create a situation where an analysis of children’s privacy rights is long overdue. The United States, a signatory to the CRC, can do more to fulfil its obligations to the CRC and its youngest citizens, specifically in the protections it affords its children’s privacy rights.14 The United States can do so by establishing a greater understanding of and respect for children’s privacy rights through a new legislative undertaking, founded on ideas enshrined in the CRC that children and parents or caregivers 5 can together come to an understanding of children’s rights, making decisions as informed by those rights. In advocating for such an approach, this paper will first discuss the CRC as well as the unique circumstances of the United States’ relationship to the CRC and the United States’ duties as a signatory. In addition, this paper will examine the current approaches the United States has taken to protect children’s privacy rights both before and in light of the 2019 novel coronavirus and the shortcomings therein. Lastly, this paper will advocate for the implementation of a new framework, centered around a presumption that children and parents will work together to reach a greater understanding of children’s role in the legal sphere. This will be informed by an analysis of obligations that have been recommended for states to consider in protecting such legal actors’ right to privacy, specifically concerning identifying data that has quickly become one of the greatest legal concerns in the midst of the pandemic. By so doing, caregivers will be able to help children understand their inherent autonomy as players in the legal arena during especially formative years.
Rodríguez-Pinzón, Diego, ‘Selected Issues Related to the Interaction of International Human Rights Conventions with a Proposed Treaty on Pandemics’ (2021) 36(5) American University International Law Review 1087–1096 Extract from Introduction: I have been invited to talk about the call to action for pandemics and international law. I want to approach this from an international human rights law perspective, which is my area of expertise. I would like to touch upon a few selected issues of this complex interaction. First, I believe international human rights law and its international machinery are exceptionally relevant to any effort by the international community to develop a comprehensive international instrument on epidemics and pandemics.1 It is a particularly well settled field of international law with a sophisticated implementation machinery and a wide array of supervisory mechanisms.
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.
Rudall, Jason, ‘Rights-Based Approaches to Environmental Protection and Pandemic Prevention’ (2023) 12(4) Laws 66 Abstract: This article reflects on the proposed pandemic treaty negotiations, the content of the recently published Zero Draft and its prospects for success in preventing future pandemics from emerging at all. It argues that, as presently conceived, the proposed instrument does little to address environmental damage as the primary driver of zoonotic spillover, nor does it make sufficient provision for the implementation and enforcement of legal obligations. In particular, the piece suggests that human rights and rights of nature can and should feature more prominently in efforts to fully realize the One Health agenda and strengthen environmental governance with a view to mitigating the risk of future pandemics. Experience from rights-based approaches in other contexts suggests that they offer a promising conduit for achieving genuine policy reform and accountability regarding environmental degradation. Indeed, human rights and rights of nature can play an important role in mitigating ecological destruction, biodiversity loss and, in turn, preventing disease transmission from the natural world.
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.
Saez, Macarena, ‘Pandemics and the Disproportionate Impact on Vulnerable Groups’ (2021) 36(5) American University International Law Review 1097-1104 Extract from Introduction: Few matters require more international cooperation than health issues related to pandemics. COVID-19 is the latest pandemic the world has experienced, creating one of the most complex health crises, and we know that,, unfortunately, may not be the last one. International law, therefore, will become crucial for the protection individuals and communities worldwide. As Covid-19 showed us, with each health crisis, governments will take different approaches and their impact in individual and communities’ rights will differ.
Salem, Nora, ‘COVID-19 Related States’ Obligations under International Human Rights Law: An Assessment of Egypt’s COVID-19 Response through a Gender Lens’ (2022) Australian Journal of Human Rights (Advance article, published online 20 January 2022) Abstract: The COVID-19 pandemic presents a challenge to all spheres of life—health, economy, social security, livelihood and education. These challenges are particularly severe for women worldwide, and exacerbated for women in the Middle East and North African regions due to pre-existing gender restrictive social norms. In addition, challenges have been compounded by low rates of testing and reporting, high levels of extreme poverty and regional conflicts. Despite considerable gender equality gains in the region throughout the last decade, the pandemic threatens to reverse hard-won gains by confining women back to the domestic sphere, while increasing their vulnerability to gender-based violence. In line with most countries worldwide, the Egyptian government adopted a variety of containment measures to limit the spread of the virus on 14 March 2020. Those containment measures were accompanied by certain mitigation measures to reduce discriminative impacts on women. Against this backdrop, this paper examines Egypt’s COVID-19 response against the existence of an international obligation to adopt containment measures to limit the spread of COVID-19 as well as the existence and scope of an international obligation to adopt accompanying mitigation measures to reduce disproportionate impacts on women along women’s health, gender-based violence, women’s livelihood and girls’ education.
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
- Philippe Sands: COVID-19 and International Law
- Leslie-Anne Duvic-Paoli: The COVID-19 Pandemic and the Limits of International Environmental Law
- Pedro Villarreal: “Can They Really Do That?” States’ Obligations under the International Health Regulations in Light of COVID-19 (Part 1 and Part 2)
- Mark Eccleston-Turner: The Declaration of a Public Health Emergency of International Concern in International Law
- Dina Lupin Townsend: COVID-19 and the Human Right to Water and Sanitation
- Martins Paparinskis: COVID-19 and the Foundations of International Law
- Ntina Tzouvala: The Combined and Uneven Geography of COVID-19, or On Law, Capitalism and Disease
- Marcos D. Kotlik and Ezequiel Heffes: COVID-19 in Conflict-Affected Areas–Armed Groups as Part of a Global Solution
- Solon Solomon: Israel and its International Law COVID-19 Obligations Towards Gaza
- Craig D. Gaver and Nishadee Parera: Will the UN Security Council Act on COVID-19?
- Fabricio Guariglia: COVID-19 and International Criminal Law
- Margherita Melillo: The Right to Enjoy the Benefits of Scientific Progress at the Time of the COVID-19 Pandemic
- Alonso Gurmendi: COVID-19 and the ‘Western Gaze’
- Marina Aksenova: Quantum Leaps of International Law
- Gina Heathcote and Michelle Staggs Kelsall: Law in the Time of Corona (or: Dear Dr…)
- Martin Scheinin, ‘To Derogate or Not to Derogate?’
- Nina Sun, Jason Rudall and Livio Zilli, ‘The Use of Criminal Sanctions in COVID-19 Responses: Part 1 - Exposure and Transmission'
- Nina Sun, Jason Rudall and Livio Zilli, ‘The Use of Criminal Sanctions in COVID-19 Responses: Part 2 - Enforcement of Public Health Measures'
- Elizabeth Stubbins Bates ‘Article 2 ECHR’s Positive Obligations: How Can Human Rights Law Inform the Protection of Health Care Personnel and Vulnerable Patients in the COVID-19 Pandemic?’
- Nina Tzouvala, ‘The Combined and Uneven Geography of COVID-19, or On Law, Capitalism and Disease’
- Dina Lupin Townsend, ‘COVID-19 and the Human Right to Water and Sanitation’
- Sam Zarifi and Kate Powers, ‘Human Rights in the Time of COVID-19: Front and Centre’
- Tim Fish Hodgson and Ian Seiderman, ‘COVID-19 Responses and State Obligations Concerning the Right to Health (Part 1)’
- Tim Fish Hodgson and Ian Seiderman, ‘COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)’
- Matt Pollard, Mathilde Laronche and Vivian Grande, ‘The Courts and Coronavirus’ (Part 1) (Part 2)
- Tobu Cadman, ‘The Impact of Coronavirus (COVID-19) on Prisoners’
- Douglas Guilfoyle, ‘Teaching Public International Law in the Time of Coronavirus: Migrating Online’
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.
Saunders, Imogen et al, ‘COVID-19 and International Law: Sketching the Parameters’ (2021) 39(1) The Australian Year Book of International Law Online 3–12
Sekalala, Sharifah and Belinda Rawson, ‘The Role of Civil Society in Mobilizing Human Rights Struggles for Essential Medicines: A Critique from HIV/AIDS to COVID-19’ (2022) 24(2) Health and Human Rights Journal 177–189 Abstract: In this paper, we explore the strategies utilized by civil society organizations to improve access to medicines during the HIV/AIDS and COVID-19 health crises. In particular, we seek to illuminate why some of the successful approaches for increasing access to antiretrovirals for HIV/AIDS in the early 2000s failed in creating equitable global access to COVID-19 vaccines. While civil society has historically mobilized human rights to facilitate greater access to essential medicines, we argue that earlier strategies were not always sustainable and that civil society is now mobilizing human rights in radically different ways than previously. Instead of focusing chiefly on securing an intellectual property waiver to the TRIPS Agreement, civil society organizations are now challenging vaccine injustice, rejecting the ‘charity discourse’ that fuels Global South dependency on Global North actors in favor of scaling up manufacture in low- and middle-income countries, and moving to embed the right to access medicines in a new World Health Organization pandemic treaty with civil society organization participation and meaningful representation from low- and middle-income countries. Such approaches, we contend, will lead to more sustainable solutions in order to avert further health care disasters, like those seen with two distinct but related struggles—the fights for equitable access to essential medicines for HIV/AIDS and for COVID-19.
Shlomo Agon, Sivan, ‘Farewell to the F-Word? Fragmentation of International Law in Times of the COVID-19 Pandemic’ (2022) 72(1) University of Toronto Law Journal 1–49 [pre-published article available on SSRN] 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 testcase and considering the unresolved problems in existing fragmentation literature 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 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 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-centered focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.
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.
Seta, Makoto, ‘Compulsory Insurance for Cruise Vessels as a Preparation for the next Pandemic: Law of the Sea Perspective’ (2023) 152 Marine Policy Article 105586 Abstract: During the COVID-19 pandemic, many port states faced difficulty when cruise vessels with COVID-19 patients tried to dock at their ports. Although they are basically not obliged to accept such vessels under international law, they cannot easily deny access because the refusal would be viewed as a lack of humanitarian consideration. On the other hand, accepting such vessels leads to the risk of exposing their own nationals to COVID-19 and incurring the financial cost of medical treatment for cruise passengers. In fact, in the cases of Diamond Princess, Costa Atlantica, and Zaandam and Rotterdam, the question of who should take on the financial burden for medical costs of crews and passengers on board these vessels was debated. The current international legal framework does not provide any answer to this question, and therefore, a new framework is needed. If the new framework allocates the economic burden to ensure the provision of tests and medical care so that an intolerably heavy burden is not imposed on port states, they will be more welcoming to cruise vessels with infected people. Such allocation could be realized by requesting that carriers provide a compulsory insurance system for medical care in a pandemic.
Severin, Adrian, ‘Protection of Religious Freedom in Romanian and International Law, with Special Reference to the Case Of The Romanian Orthodox Church’ (2020) 14 Conferința Internațională Educație și Creativitate pentru o Societate Bazată pe Cunoaștere - DREPT 10–21 Abstract: The establishment of the state of emergency, followed by the state of alert, in Romania, amid the Covid 19 pandemic, raised the issue of the relationship between the state and the church, as well as that of the legal regime of religious freedom in Romania. In this context, several key questions were asked. What is the distinction between right and its exercise, given that, at most, the exercise can be limited? Who establishes the content of the right to practice a religious cult? The church or the state? Is a law that requires the modification of religious beliefs, even if only in their outward expression, compatible with the principle of religious freedom? May church hierarchs be required to cooperate in enforcing such a law? What are the procedural and substantive conditions regarding the regulation of religious activity? May religious freedom be restricted in some way? If the direct limitation is not allowed, according to the Constitution, could indirect limitations be accepted? This study attempts to answer all of these questions. In essence, the answer is that the state has a wide margin of maneuver in establishing the framework for the manifestation of religious freedom, including the hygienic-sanitary measures imposed by the fight against a pandemic, but it has strict limits. In any case, religious freedom cannot be restricted in any way.
Shah, Sonam, ‘Developing the WHO’s Pandemic Treaty To Facilitate Global Solidarity and International Accountability’ (2022) 101(1) North Carolina Law Review 223–251 Abstract: The COVID-19 pandemic continues to cause suffering for millions of people around the world. The virus, initially discovered in 2019, has spread rapidly due to increased globalization and has affected every country. Many of the approaches to containing the pandemic have led to human rights violations and have furthered human suffering. Global health governance has attempted to control the spread of COVID-19 through existing international law. However, the pandemic has exposed gaps in that governance framework, highlighting the need for international law reform to close those gaps and prevent, detect, and respond to the next pandemic. In response to the COVID-19 pandemic, the World Health Organization (‘WHO’) has prioritized drafting and enacting a convention, agreement, or other international instrument on pandemic preparedness and response. The WHO proposes using its constitutional powers to pass one of these legal instruments, making this so-called ‘pandemic treaty’ only the second time the WHO has used its Article 19 powers to create a legally binding instrument. With negotiations and discussions currently happening on the global stage as to what should go into this treaty, the WHO should take this opportunity to include meaningful accountability measures and provisions to ensure global solidarity in pandemic responses, complementing existing global health law sources to prevent, detect, and respond to the next pandemic, and respect human rights in responses to future pandemic threats.
Shahbazi, Aramesh, ‘A Consideration of International Health Organization Regulations (2005) Emphasizing on the Outbreak of Coronavirus Pandemic’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: the coronavirus crossed China’s national borders in January 2020, rapidly infected a large number of countries in less than six months. Indeed, the outbreak of infectious diseases is not unprecedented in the world, yet, the harmful effects of such a dangerous virus on economy, industry, tourism, politics, sports, and even routine life caused serious challenges for states and other actors at both national and international levels. As a result, it is time to reconsideration the ways of facing and managing pandemics by focusing on existing legal system to find the gaps and to provide the efficient ways of dealing with such severe challenges of international law. Thus, this article seeks to provide a legal analysis of the International Health Organization Regulations (2005) by focusing on capacities, regulations and loopholes of the document to find its legal status in international human rights system. Certainly, in this critical context, a universal coalition between international organizations and states, a global cooperation among all actors as well as a well-organized legal framework should be considered as the last resolution for international community to survive.
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.
Shio, Honest Thadeus, ‘An Analysis of the Law and Practice of the World Health Organization During the 2019 Influenza Pandemic’ (2022) 8(6) Journal of Legal Studies & Research 199–211 Abstract: This article delves into the 2019 Influenza pandemic named COVID-19 and examines the law and the institution responsible for health matters in the world the World Health Organization. The article argues that the WHO failed to execute a coordinated global response towards COVID-19 due lack of political will from states, elements and claims of bias and the mandate bestowed upon it by the International Health Regulations is toothless that is in-case of breach there is no a sound accountability mechanism. The article lastly recommends the restructuring of the World Health Organization, amendments to the International Health Regulations to give more powers to the WHO and an adoption of a new international convention devoted to dealing with pandemics.
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.
Schultz, Suzanne, ‘The Buffet Doesn’t Stop Until Covid-19 Walks In: How the Hands-off Approach of Flag States Exposed Legal Nightmares Onboard Cruise Ships During a Global Pandemic and Why Changes Must Be Made’ (2022) 13(1) George Mason International Law Journal 1–22 Abstract: Through the lens of the Covid-19 pandemic, this comment will argue that the flag of convenience system led to the ensuing chaos after no-sail orders were issued because the cruise industry could not respond adequately to the crisis on its own. Flag states bore little to none of their legal burdens while leaving the nightmare of docking, repatriation, and subsequent lawsuits for cruise companies and port states to solve. Crew members and passengers were also severely impacted by the events and were left with no significant means of recourse by either the flag states or the cruise lines. In an ideal world the flag of convenience system would be abandoned, but that is extremely unlikely given the power and influence the Cruise Lines International Association holds and the fact that cruise ships rely on the low administrative costs and almost complete control that results from being registered to one of the traditional flag states. Instead, this comment proposes that powerful states, especially the United States, should expand its legal jurisdiction for cruise lines headquartered in its state or work with other major states to create an international tribunal for claims stemming from cruise ships to provide stronger legal remedies for passengers and crew members.
Siapoush, Ali Akbar, ‘The Effect of Pandemics on the Implementation of International Humanitarian Law: A Study of the Situation Resulting from the Covid-19 Virus’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Abstract: The effect of pandemics on the implementation of International Humanitarian Law: A study of the situation resulting from the Covid-19 virus Ali Akbar Siapoush )Ph.D. graduate of International Law, Shahid Beheshti University( Abstract The link between armed conflict and epidemic-related conditions begs the question of how and to what degree the implementation of the International humanitarian law commitments is influenced by the presence of such circumstances. Humanitarian norms, whose principal objective is to protect individuals and objects by regulating the conduct of hostilities and limiting the parties to the conflict in their choice of means and methods of warfare, require a review of purely military judgments in situations resulting from widespread diseases, particularly in the case of medical personnel working in hospitals and centers who, despite their dual purpose, have a direct impact on the fight against the disease.
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.
Sirleaf, Matiangai VS, ‘Covid-19 and Cooperation in Times of Disaster’ in Susan S Kuo, John Travis Marshall and Ryan Rowberry (eds), Cambridge Handbook of Disaster Law and Policy: Risk, Recovery, and Redevelopment (Cambridge University Press, 2022) 221–228 [pre-published chapter available on SSRN] Abstract: The coronavirus pandemic has made it apparent that nation states have different capacities to detect, effectively respond to, and manage highly infectious diseases. Concomitantly, the resources necessary to support robust health systems are distributed inequitably, which inevitably places greater stress on societies with the most vulnerable health infrastructure. Every nation, even those predicted to have comparatively robust health capacities, found their health systems overwhelmed during the COVID-19 pandemic. This chapter analyzes the international obligations of capacity-building and cooperation. It finds that international disaster law is a helpful framework for responding to complex international emergencies which span different legal regimes. It concludes that the potential utility of international disaster law for addressing issues witnessed with the COVID-19 pandemic and beyond is worth greater investigation.
Sitamala, Afandi, Ferina Ardhi C and Ahmad Lanang C, ‘The Implementation of CEDAW Principles on Reducing Gender-Based Violence During the Covid-19 Pandemic’ (2022) 7(1) Journal of Law and Policy Transformation 44–53 Abstract: This study aims to identify the principles of CEDAW and analyze them to determine the effectiveness of these principles in reducing gender-based violence during the outbreak. The study was carried out using normative legal research methods that included a conceptual and statutory approach. A literature research will be used to acquire legal materials, and the legal materials will be assessed using CEDAW principles. The study’s findings reveal that there are three foundational principles of the CEDAW these are non-discrimination, substantive equality, and state obligation. The principles are effective on plummeting gender-based violence in pandemic outbreak. The full application of the CEDAW principles remains a significant challenge.
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.
Šolc, M, ‘The Pandemic and the Law: Challenges of Covid-19 to the Ethical and Legal Paradigm of Health Care’ (2021) 12 Czech Yearbook of Public and Private International Law 371–380 Abstract: Since the Covid-19 pandemic started in early 2020, countries across all the continents have faced a dilemma between the protection of several conflicting fundamental rights guaranteed by international law. On the one hand, the life and health of people have been seriously endangered by the new virus. On the other hand, many epidemiological measures have interfered with some other fundamental rights. Therefore, careful balancing has been necessary to find proportionality between the protection of competing rights. Nevertheless, the proportionality of interferences with human rights is arguably dependent on the epidemiological situation in each country, i.e., on the nature and intensity of threat to human life and health. This might bring us to a broader question of what ethical theories provide the basis for containment measures and whether the contemporary ethical paradigm has passed the test of the current crisis. The paper analyses the possible changes in the role of utilitarianism as one of the leading theories in medical ethics during the pandemic. Furthermore, it asks whether it is reasonable to strive for the generally valid set of legal and ethical rules applicable regardless of the wider circumstances.
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
Sreenivasulu, NS, ‘COVID-19, Patents and Right to Health’ (2022) 3(5) CIFILE Journal of International Law 31–38 Abstract: The COVID-19 pandemic has created an unprecedented scene and situation across the globe in terms of the health of people at large. Hitherto unknown, unheard and unprecedented health emergency it has created which was never foreseen and anticipated by any wild stretch of the imagination by anyone. It has called for Resolution of the World Health Assembly, which recognizes that the COVID-19 pandemic has an impact on the poor and the most vulnerable, with repercussions on health and development gains, in particular in low-income countries. It further calls on cooperation between multilateral organizations and other stakeholders and the World Health Organization (WHO) to identify and provide options that respect the provisions of relevant international treaties, like the TRIPS Agreement and the flexibilities within TRIPS Agreement for ensuring Public Health. It is indeed required that, as proposed in the Doha declaration, flexibilities within the TRIPS agreement be used in protecting public health at large in the COVID pandemic times. Such flexibilities could include scaling up the development, manufacturing and distribution of medicines, including the vaccines, injunctions, capsules and tablets used in treating the COVID at present. It is also required that capacities be built for transparent, equitable and timely access to quality, safe, affordable and efficacious diagnostics, therapeutics, medicines, and vaccines for the treatment of COVID. It can be ensured only by using the flexibilities under international agreements like TRIPS while promoting the innovation in pharma for finding better solutions for COVID.
‘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.
Sturkie, Talia, ‘Must China Pay? How Claims Against China for COVID-19 Reveal Flaws in the International Legal System That Make Accountability Impractical’ (2023) 11(2) Penn State Journal of Law & International Affairs 218-260 Abstract: Part I of this Comment examines the global health obligations of states under international law and the mechanisms that currently exist to assign state liability. Part II describes potential theories of state liability for COVID-19 and addresses the inherent problems with implementing them. This Comment will further address how, even if such methods could overcome their intrinsic difficulties, such as jurisdictional and evidentiary burdens, they would prove impossible to implement in the case of COVID-19. Finally, with the legal means available today exhausted, this Comment proposes a series of changes to the international legal system to improve the viability of legal methods to seek justice on the global stage.
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.
Sun, Siqi and Lijun Liz Zhao, ‘Legal Issues and Challenges in Addressing the Coronavirus Outbreak on Large Cruise Ships: A Critical Examination of Port State Measures’ (2022) 217 Ocean & Coastal Management 105995 Abstract: International cruises have drawn worldwide attention since the outbreak of coronavirus (COVID-19). This article first examines the legal issues, challenges and impact of the pandemic on large cruise ships, like the Diamond Princess, and then probes into corresponding pandemic preventive measures which port states employ. A State is obliged under the International Health Regulations 2005 (IHR) to grant foreign cruise ships free pratique, but there is an exception when public health emergencies of international concern occur. Therefore, this article argues that a port state is not obliged to allow foreign cruise ships to dock at its port at the cost of its domestic public health safety. Regarding the Diamond Princess, the Japanese government has undertaken pandemic preventive measures upon passengers on board the ship and complied with its domestic laws, including the Japanese Quarantine Act. This article further evaluates whether a port state’s pandemic preventive measures concerning cruise ships are appropriate from the perspective of law. More importantly, it is necessary to consider the characteristics and specialities of international cruise ships to improve future pandemic preventive measures against large passenger ships and cruise passengers.
Sýkorová, Michaela, ‘Restricting Diplomatic Privileges in the Protection of Public Health? The Application of the Vienna Convention in the Times of Pandemic’ (2021) 12 Czech Yearbook of Public and Private International Law 3–21 Abstract: The article raises an interesting question how the application of the 1961 Vienna Convention in current States practice has faced the ongoing pandemic when it comes to various restricting measures. Having imposed range of travel restrictions, curfew, forced quarantine or mandatory medical examination States have been challenged to find out the right way how to prevent and ensure the public health while still respecting the status and privileges of foreign diplomats. Although generally subject to the duty to respect the laws and regulations of the receiving States, those persons enjoy a special treatment, in comparison to the local population, and, in particular, are exempted from the enforcing jurisdiction of the territorial sovereign. Thus, the issue of lawfulness of restricting measures, mainly in the caveats of necessity and proportionality, is analysed, both generally and in relation to concrete measures. Notwithstanding the self-contained nature of diplomatic legal regime, the author does not limit herself to the interpretation of the Vienna Convention, but also points to subsequent and recent practice by States and aims to assess the discussed aspects from the perspective of the law of responsibility as well. Finally, the criteria of permissibility are tested against particular measures. The author eventually concludes in question whether States practice during the pandemic has altered the perception of diplomatic privileges and immunities and how the application of the 60-year-old Convention in such an unprecedent situation has been preserved.
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 Punishment’ Michigan 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.
Thuong, Mac Thi Hoai, ‘Ensuring Human Rights during Covid-19 Pandemic: International Law and the Obligations of States – The Problems of Southeast Asian Countries’ (2022) 5(3) International Journal of Law Management & Humanities 1239–1254 Abstract: The Covid-19 pandemic (SARS-CoV-2) has become complicated in most countries around the world. The pandemic not only claims the lives and affected the health of tens of millions of people, but also has many negative impacts on life and human rights. To limit the spread of the disease, states have adopted many measures, such as warnings, travel restrictions, medical isolation, and border closures, etc. Despite limiting the spread of the Covid-19, these measures negatively affect human freedoms, such as freedom of movement, freedom to choose health care providers, etc. This paper uses the methods of statistics and describing reality to show the obligations of states to ensure human rights under the impact of the pandemic according to the provisions of international law, and the fulfillment of these obligations in member states of the Association of Southeast Asian Nations, the challenges faced by ASEAN countries to fulfill their national obligations in ensuring human rights under the impact of the epidemic and in post-pandemic: the shortage of vaccine supply; mass vaccination is unlikely to be achieved in the short term. The comparative method is used in some parts of the article to compare Fulfillment of states’ obligations in ensuring human rights under the impact of the Covid-19 pandemic in ASEAN countries.
Turkie, Rosalind, ‘Upholding Human Rights in the Wake of COVID-19: Time to Strengthen Pharmaceutical Accountability’ (2022) 24(2) Health and Human Rights Journal 205–209 Abstract: Pharmaceutical companies have the power and the responsibility to help governments realize the human right to health for all, yet there are egregious examples—such as the recent COVID-19 pandemic—where companies have violated these responsibilities. The Pharmaceutical Accountability Foundation, a nonprofit organization based in the Netherlands, argues that it is time to hold drug companies accountable for their excessive pricing policies and abuse of the intellectual property framework.[1] As a first step toward accountability, the foundation developed a monitoring and evaluation scorecard to measure pharmaceutical companies’ compliance with human rights during the COVID-19 pandemic. The results of this scorecard, published in June 2022, demonstrate that stronger regulation is needed to obtain better adherence to human rights in the pharmaceutical field (see Figure 1). We propose a legal standard in Dutch law—a requirement for a duty of care—as a promising avenue for enforcing the pharmaceutical industry’s human rights responsibilities, which has been difficult until now.
Uraz, Onur, ‘International Law During and After the COVID-19 Crisis: Does Achieving a True International Cooperation Impossible Without a Structural Shift?’ in Şefika Şule Erçetin, Nihan Potas and Şuay Nilhan Açıkalın (eds), Beyond COVID-19: Multidisciplinary Approaches and Outcomes on Diverse Fields (World Scientific, 2021) 107–132 Abstract: This chapter examines whether the lack of cooperation and coordination in the fight against COVID-19 emerges from some deficiencies in the international legal framework or if there exists a deeper structural problem that requires a much more fundamental change that goes beyond the boundaries of law. This question primarily stems from the writings of Slovaj Žižek, who argues that the ongoing crisis exposed the structural problems inherent to the existing liberal–capitalist order and may ultimately prompt a new form of ‘communism’. This chapter consists of three main parts following the introduction. In part two, Žižek’s arguments are presented to the reader. Part three summarizes the international legal framework that governs the fight against the pandemic. The fourth and final part of the chapter offers a critical analysis of the international legal framework in the light of Žižek’s criticisms. Here, it is ultimately argued that while both legal reforms and a structural change are needed for better global cooperation in responding to the global needs and threats, rather than liberalism, we should challenge the rising nationalism and the sacralized state sovereignty.
Viens, AM, Victoria Cassar and Asma Atique, ‘Carving the Meat at the Joint: The Role of Defining How Animals Are Viewed and Treated in the Governance of (Re-)Emergent Pandemic Zoonoses in International Law’ (2023) 45(3) Law & Policy 392–413 Abstract: Pandemic zoonoses, such as COVID-19, are one of the greatest challenges of the 21st century. International governance tasked with attempting to prevent the (re-)emergence of zoonotic disease in the first place, or preparation and actual response once (re-)emergence or spread has occurred, has largely been fragmented among different governance systems, such as health, food, environment, and trade. The international legal instruments that these governance systems use reflect different ways of viewing and treating animals, which has led to a similarly fragmented approach to the regulation of human–animal interactions related to zoonoses. To illustrate this state of affairs, we develop a descriptive conceptual taxonomy to elucidate and map out how the status and evaluative stance taken toward animals can lead to shaping human-animal relationships by structuring the nature of their interactions and disposes us to adopt governance approaches that seek to regulate human–animal relationships in particular ways. This paper concludes by highlighting some implications surrounding the fragmented conceptualization and practice around how animals are viewed and treated for the future of international legal governance of pandemic zoonoses.
Villarreal, Pedro A, ‘International Law and Digital Disease Surveillance in Pandemics: On the Margins of Regulation’ (2023) 24(3) German Law Journal 603–617 Abstract: The COVID-19 pandemic elicited a surge in the use of digital tools to replace ‘classic’ manual disease tracking and contact tracing across individuals. The main technical reason is based on the disease surveillance needs imposed by the magnitude of the spread of the SARS-CoV-2 virus since 2020, particularly how these needs overwhelmed governments around the world. Such developments led to stark variations across countries in terms of legal approaches towards the use of digital tools, including self-reporting software and mobile phone apps, for both disease tracking and contact tracing. Against this backdrop, in this article I highlight some of the normative challenges posed by the digitalization of disease surveillance, underscoring its almost non-existent regulation under international law. I look back at the historical emergence of the epidemiological principles underlying this procedure, by referring to John Snow’s trailblazing work in cholera control. I emphasize how the COVID-19 pandemic prompted both technical and normative shifts related to the digitalization of these procedures. Furthermore, I refer to some of the overarching obstacles for deploying international law to tackle future tensions between the public health rationale for digitalized disease tracking and contact tracing, on the one hand, and normative concerns directly related to their legality, on the other hand. Lastly, I put forward conclusions in light of the current juncture of international health law reforms, and how they so far display limited potential to herald structural changes concerning the legality of the use of digital tools in disease surveillance.
Villarreal, Pedro A, ‘Pandemic Risk and International Law: Laying the Foundations for Proactive State Obligations’ (2022) 3(1) Yearbook of International Disaster Law Online 154–179 Extract from Introduction: Any future regulation of pandemic risk prevention would have to, first, establish whether and to what extent pandemics will be considered to be influenced by human activity; and, second, whether states’ specific actions or omissions in the prevention of pandemic risk could be framed as international law obligations, and in what terms. The article proceeds by highlighting some of the epistemic gaps that may explain why existing international norms have, so far, not tackled pandemics as possibly manmade events. Similar to the evolution of risk reduction under international disaster law in recent decades,7 the text shows what a shift from a predominantly reactive approach towards a proactive one would entail. Second, the following text looks at how risk reduction is regulated in international law more broadly, revisiting the distinction between natural and manmade threats as a basis for specific regulatory choices. Third, the text sets some basic foundations for what overcoming the current reactive approach towards pandemic risk would legally entail. It is a particularly apposite subject in light of ongoing discussions of a new international instrument on pandemic preparedness and response,8 which at the moment of writing is subject to an uncertain process of high-level negotiations and debates. Lastly, the text puts forward conclusions on how the analysis herein can contribute to legally framing future steps towards the effective regulation of pandemic risks, a matter highly dependent on resorting to the state of the art in the medical and life sciences.
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.
Trebilcock, Anne, ‘Governance Challenges and Opportunities for the International Labour Organization in the Wake of the COVID-19 Pandemic’ (2021) 18(3) International Organizations Law Review 370–396 [draft article available on SSRN] Abstract: The International Labour Organization has confronted several governance challenges in the wake of the COVID-19 pandemic. This article looks at the impact of the pandemic on both the internal operations of this unique tripartite UN Specialized Agency and on the ILO’s substantive work on labour market and social protection governance. It explores how international labour standards and their monitoring offer human rights pointers for addressing the crisis. The article highlights interaction (not always coherent) between the ILO and other organizations in connection with COVID-19 and economic recovery. It foreshadows initiatives on how to ‘build back better,’ with the ILO again seeking a strengthened multilateral role in support of its social justice mandate, as informed by resolutions adopted by the International Labour Conference. The article also touches on the pandemic’s impact on the functioning of the ILO Administrative Tribunal, which adjudicates employment disputes for many international organizations.
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 Aardt, Willem, ‘State of Emergency in South Africa, Mandatory Covid-19 Vaccination and International Human Rights Law’ in Ana Čović and Oliver Nikolić (eds), Pravni i Društveni Aspekti Vakcinacije Tokom Pandemije Kovida 19 / Legal And Social Aspects Of Vaccination During The Covid-19 Pandemic (Institute of Comparative Law, 2022) 205–225 *[OPEN ACCESS BOOK]* Abstract: Recent events across the globe have again brought the world’s attention to the complex interrelationship between States of Emergency and the protection of fundamental human rights. South Africa was the first African country to declare a national state of emergency. As part of its emergency response to the Covid-19 pandemic, South Africa’s Health Minister in April 2021 announced the launch of its mass vaccination campaign against Covid-19. Derogation provisions in the International Covenant on Civil and Political Rights allow for States Parties to lawfully suspend human rights guarantees to respond to an emergency ‘that threatens the life of the nation’ To decide on both the presence of such an emergency and the nature and scope of derogations necessary to avert it, authorities have a wide margin of appreciation. Derogation from rights recognized under international human rights law to respond to ‘a threat to the life of the nation’ is, however, not exercised in a legal vacuum. It is authorized by law, and as such, it is subject to several legal principles and standards. An emergency that threatens the life of the nation must imperil fundamental elements of statehood or the survival of the population. No State party has the right to violate citizens’ right to life and the right to be free from torture, cruel, inhumane, or degrading treatment, and the right to be free from medical experimentation without free consent. These jus cogens norms are not derogable under any circumstances, even for the stated purpose of safeguarding the life of the nation during a public health emergency.
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.
Vese, Donato, ‘On the Administrative Powers of the WHO: A Lesson from the Pandemic’ (2022) 30(1) European Journal of Health Law 66–81 Abstract: The WHO’s management of the pandemic has drawn sharp criticism. It has been suggested that there is an urgent need for a reform providing more intrusive administrative powers. By contrast, this paper argues that the WHO needs sharing powers rather than intrusive powers. Given that the main international norms have arguably designated the WHO as a ‘non-authoritarian’ authority aiming at the highest possible level of health for individuals, the paper suggests that sharing of administrative powers should be incentivised by involving all the relevant actors in the decision-making process, namely through the participation in proceedings of all actors involved in the decision-making, namely governments, national health authorities, and other non-state actors.
Viens, AM, Victoria Cassar and Asma Atique, ‘Carving the Meat at the Joint: The Role of Defining How Animals Are Viewed and Treated in the Governance of (Re-)Emergent Pandemic Zoonoses in International Law’ (2023) Law & Policy (advance article, published online 10 July 2023) Abstract: Pandemic zoonoses, such as COVID-19, are one of the greatest challenges of the 21st century. International governance tasked with attempting to prevent the (re-)emergence of zoonotic disease in the first place, or preparation and actual response once (re-)emergence or spread has occurred, has largely been fragmented among different governance systems, such as health, food, environment, and trade. The international legal instruments that these governance systems use reflect different ways of viewing and treating animals, which has led to a similarly fragmented approach to the regulation of human–animal interactions related to zoonoses. To illustrate this state of affairs, we develop a descriptive conceptual taxonomy to elucidate and map out how the status and evaluative stance taken toward animals can lead to shaping human-animal relationships by structuring the nature of their interactions and disposes us to adopt governance approaches that seek to regulate human–animal relationships in particular ways. This paper concludes by highlighting some implications surrounding the fragmented conceptualization and practice around how animals are viewed and treated for the future of international legal governance of pandemic zoonoses.
Vilbert, Jean, ‘Global Health Governance Post-Covid-19: Time for a Hierarchical Order?’ (2021) 7(2) Journal of Liberty and International Affairs 11–30 Abstract: The COVID-19 has renovated the debate about global health governance. Many scholars have proposed that the World Health Organization (WHO) should assume the position of a central coordinator with hierarchical powers. This article presents four main objections to this project: the problems with ‘one-size-fits-all’ policies, the heterogeneous distribution of power within multilateral institutions, the risks of crowding out parallel initiatives, and the democratic principle. Testing the WHO’s ability as a provider of technical information, an OLS regression, analyzing the first year of the coronavirus health crisis, from January 2020 to January 2021, in 37 countries reported in the World Values Survey Wave 7, shows a negative relationship between the population trust in the WHO and the number of cases of COVID-19. This indicates that there is a valid case for countries to strengthen the WHO’s mandate, but not to create a hierarchical global health structure.
Villarreal, Pedro, ‘Infectious Diseases’ in Christina Binder et al (ed), Elgar Encyclopedia of Human Rights (Edward Elgar, forthcoming, 2022) Abstract: The current entry discusses several linkages between infectious or communicable diseases and human rights issues. First, the entry puts forward a brief historical note on how international law in the field of the cross-border spread of disease emerged in parallel to international human rights law. Far from being a recent phenomenon, infectious disease outbreaks have long raised questions of which legal measures by national authorities are adequate to respond to these threats. Although the global burden of disease posed by infectious diseases receded in the course of the 20th Century, events such as the HIV/AIDS pandemic and, currently, the COVID-19 pandemic, gave way to questions on the extent of states’ health-related human rights obligations. Second, the entry examines the interpretation of states’ concrete obligations by international and regional quasi-judicial and judicial human rights bodies. Striking the right balance between protecting persons from the spread of diseases, while at the same time safeguarding individual rights and freedoms, has been a staple of debates in legal doctrine and practice. The entry shows how infectious disease-related events lie beyond the divide between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand. The analysis concludes by pondering whether the COVID-19 pandemic will be a human rights crucible, posing a series of open questions for further research.
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.
Villarreal, Pedro A, ‘Pandemics, Expertise and Deliberation at the International Level’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 227-242 [OPEN ACCESS BOOK] Extract from Introduction: This chapter aims at addressing certain elements of the process of deliberation within the WHO’s Emergency Committees. The analysis focuses on the legal dimension, which undergirds deliberations as part of expert decision-making at the international level regarding health emergencies. One caveat is that, although the analytical starting point is legal, the subject of analysis is a consultative ad hoc body not fully equivalent to deliberation within adjudication. Therefore, the descriptive and the normative premises should not be equated to those of other legal operators, such as judges. Instead, the current text tackles the internal deliberations of an ad hoc expert body which is not the ultimate decision-maker, but rather fulfills a consultative purpose.
Wang, Chao, ‘A Community of Shared Future for Mankind in the Global Pandemic Era: Towards a Normative Consensus or Authoritarian International Law?’ (2022) 15(2) Journal of East Asia and International Law (JEAIL) 315–330 Abstract: This article provides an analyses the implications of China’s constitutionally proclaimed notion of ‘Community of Shared Future for Mankind’ (CSFM), which reveals the stance of the PRC party in promoting so-called ‘Chinese wisdom’ and a ‘Chinese solution’ to address common issues in global governance and in pursuing China’s global leadership in President Xi Jinping’s ‘New Era.’ The author explores the possibility for China and the West of reaching a normative consensus in terms of standards set by the CSFM vision and human security in light of the current global pandemic. The author advocates pursuing a pragmatic, problem-solving approach to international engagement with China without advancing a particular political agenda based on broad ideological presumptions, namely by encouraging and facilitating China’s further participation in international institutions and treaties. This approach may establish an increasing convergence and resonance of local and nonlocal norms to reach a normative consensus and, ultimately, to influence treaty performance incrementally and gradually.
Wang, Guiguo, ‘The Right to Health in the Context of Globalised Pandemics’ (2022) 9(2) Journal of International & Comparative Law 17–44 Abstract: COVID-19 has posed unprecedented challenges to the international public health order which could be traced to mid-nineteenth century. With the establishment of the World Health Organization (WHO) and the conclusion of international treaties relating to human rights, the right to health has been recognised as an essential component of human rights. This article will analyse the contents and characteristics of the right to health. Then it will examine the challenges of globalisation to the functions of the WHO, including interpretation of treaty obligations of reporting infectious diseases, the causes for the less effective functioning of the international public health order and improvements that may be made. This article argues that to meet the challenges, the WHO and the international community must take measures to reform the international public health order, which should include paying more attention to the experience and needs of developing countries. In the author’s view, globalisation is still the grand trend today and as such, every country is easily affected by actions and inactions of other countries. This article suggests that before consensus can be reached at the multilateral level, bilateral and regional arrangements, including the Belt and Road Initiative promoted by China, should be considered as alternative forms for international cooperation in the area of public health.
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.
Wewerinke-Singh, Margaretha, ‘Pandemics, Planetary Health and Human Rights: Rethinking the Duty to Cooperate in the Face of Compound Global Crises’ (2022) Max Planck Yearbook of United Nations Law 399–425 Abstract: Global solidarity and international cooperation are key to addressing compound global crises – such as climate change, biodiversity loss and pandemics – effectively. It remains unclear, however, to what extent, and on what legal basis, solidarity and international cooperation constitute legal obligations of States under different branches of international law. Questions also persist about the extent to which and how States’ obligations of international cooperation are differentiated; what common and differentiated obli- gations entail in practice for States at different levels of development; and how poten- tial conflicts between different types of obligations (e.g. territorial and extraterritorial human rights obligations) must be addressed. This article seeks to unpack these ques- tions from the perspective of international human rights law, giving due consideration to relevant principles and provisions of international environmental agreements. It builds on international law scholarship that has explained how and why the provi- sions of the UN Charter should be interpreted as creating genuine membership duties, including an obligation to cooperate to realise human rights. Further, it builds on more recent scholarship that has explored how this obligation applies in connection with climate change and biodiversity, and on a nascent body of scholarship on the COVID-19 crisis, human rights and international law. The aim of the article is to explore the role of the principle of solidarity and the duty to cooperate to realise human rights in devising more effective and holistic responses to compound global crises.
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.
Xu, Jingyi and Yue Wang, ‘China’s Health Silk Road: A Way Forward for Global Health Equity in a Post-Pandemic World’ (2023) 2 Journal of Global Health Economics and Policy (Article e2022009) Abstract: The cross-border transmission of COVID-19 pandemic highlighted major challenges of mounting an efficient global response to disease threats, from sustained economic investment, strong political will, to resilient national and global health systems. Pioneering bilateral or multilateral health development initiatives with concerted efforts can become an effective weapon in reshaping and transforming the capacity in regional and national health settings. In this sense, China’s Health Silk Road, a crucial part of the Belt and Road Initiative (BRI), provides a unique opportunity to address some fissures exposed by the COVID-19 pandemic, and to make further, fundamental steps towards global health equity.
Yamin, Alicia Ely, Stefania Negri and Roojin Habibi, ‘On Sea Monsters and Sandcastles: Revisiting International Legal Frameworks Regarding Public Health and Human Rights in Global Health Emergencies’ (2022) 3(1) Yearbook of International Disaster Law Online 180–209 Extract from Introduction: In assessing why the normative scaffoldings in international law that had been built up over decades often seemed to crumble like sandcastles when the first wave of COVID-19 struck, the way in which plural democracies should manage both scientific uncertainty and competing normative values warrants further exploration. In this article we seek to contribute to ongoing discussions about the appropriate normative responses, and in particular to illuminate the need for further theorisation of relevant guiding principles as well as the imperative of democratically-legitimate decision making in health emergencies.
Yassin, Ahmed Tariq and Abdulaziz Ramdhan Ali Alkhtabi, ‘Fighting Epidemics Under International Health Law Corona Pandemic as a Model’ (2022) 11 World Bulletin of Management and Law 71–83 Abstract: Throughout history, mankind has been exposed to many pandemics, including the Corona pandemic, which has completely infected the world and affected all aspects of life. This, of course, is due to the form of the epidemic, the way it spreads, and its direct impact on human life, and that addressing these epidemics is through the World Health Organization (WHO) in cooperation with the internal health authorities of countries. Thus, the basis of work is through the application of international health law, which is part of the general and specialized international law, to confront epidemics and infectious diseases, keep abreast of developments and scientific knowledge and know the causes of some infectious diseases. In addition to that work to oblige countries to implement the International Health Regulations because of their a binding legal nature, as well as their scientific role to research the new scientific concepts developed by health regulations, and to confront the health risks resulting from the Corona pandemic.
Yiallourides, Constantinos, ‘The Legal Duty of States to Cooperate in the Fight Against Pandemic Disease under the International Health Regulations’ (2023) 25(2) International Community Law Review 213–242 Abstract: The paper outlines the contemporary legal framework of global health focusing on the legal duty of States to cooperate in the surveillance, prevention, and control of epidemic and pandemic disease. The paper details, in particular, the content and nature of States’ duty to cooperate under the International Health Regulations – the primary international legal instrument governing the global response to such events. It also examines the role of the World Health Organization and other UN bodies in fostering cooperation between States in the fight against epidemics and pandemics.
Young, Sophie Capicchiano, ‘State Responsibility for COVID-19: Does International Contagion Constitute Transboundary Harm?’ (2021) 11(2) Asian Journal of International Law 372–390 Abstract: As the damage caused by COVID-19 has increased exponentially, so too has the insistence that China bears some international responsibility for the unquantifiable damage sustained as a direct result of the state having failed to contain the virus, and to notify the international community of its existence. Some have suggested that the international contagion of the virus may be classified as transboundary harm. The current article analyses the law of transboundary harm, and proposes a set of criteria based on treaty and precedent that may be relied on to properly classify an event as such. It concludes that it is not only incorrect to classify international contagion as transboundary harm, but that to do so would pose a significant risk to the position and treatment of the individual in international law.
Yu, Peter K, ‘Vaccine Development, the China Dilemma and International Regulatory Challenges’ (2023) NYU Journal of International Law and Politics (forthcoming) Abstract: Since the World Health Organization declared COVID-19 a global pandemic in March 2020, countries, intergovernmental bodies, nongovernmental organizations and individual experts have called for the development of new global frameworks and adjustments to international regulatory standards. As the pandemic has become more successfully contained—at least in the Global North—demands for emergency relief measures have given way to debates on the development of new standards to provide a more effective response during the inter-pandemic period and in the post-COVID era.One challenging and inevitable debate concerns the role of China in such development. Among the important issues are whether China will support the development of new international regulatory standards, whether its participation will create additional complications, how its role will evolve in the near future and how best to engage with the country in the international regulatory system. Improving global pandemic preparedness in this system is particularly important considering that many medical and public health experts have already predicted that another global pandemic will happen in the next decade or two.Written for the 28th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium, this article begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. It then highlights the difficulty in determining how best to engage with China in the development of new international regulatory standards. The Article shows that the preferred choice of engagement will likely depend on the perspective through which one evaluates China’s potential contributions and complications: an analysis that focuses on international competition will differ drastically from one emphasizing global health. This Article concludes by drawing four lessons on the challenges and complications that China has posed to policymakers in their development of new international regulatory standards.
Yu, Zhibo and Yuanxuan Wang, ‘Instruments to Improve International Legal and Institutional Systems to Combat the COVID-19 Pandemic’ (2022) 653 Advances in Social Science, Education and Humanities Research 252–258 Abstract: Covid-19 ravages the entire world. Countries have taken different measures to combat this unpredictable virus, leading to a more complex pattern of international relations. This paper addresses the chain reaction of global shortage on medicine goods and personal protective equipment, and explains the reasons behind the increased national protectionism. It also examines the legality of tariff or non-tariff measures under the international laws of WTO. Beyond that, this paper leads to the discussion of a new global initiative-COVAX, and evaluates its significance and challenges. The paper comes to the conclusion that speed, transparency, and interconnected coordination are crucial to end this pandemic, and offers suggestions for countries to collaborate and contribute to a more inclusive world.
Zagor, Matthew, ‘Human Rights and Structural Inequality in the Shadow of COVID-19: New Chapter in the Culture Wars?’ (2021) 39(1) The Australian Year Book of International Law Online 169–194 Abstract: This article takes as its starting point the convergence of two rights-related grassroots movements given momentum by the pandemic’s manifestly discriminatory impact: the push to recognise and address racism as a public health crisis, and the global influence of the Black Lives Matter (‘BLM’) movement. It considers the relevance of this moment to international human rights law, the adequacy of the response from its key institutions, and the conservative backlash, framed within the rhetoric of rights, that is challenging the very idea of structural racism. In doing so, it argues that we are witnessing a new stage of the culture wars around the language, method and assumptions of human rights law with which the discipline must engage pragmatically and strategically.
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.
Zhang, Yumeng, ‘Research on Public Health Emergency of International Concern Under International Law: Take COVID-19 as an Example’ (2021) 624–628 Abstract: COVID-19 broke out in January 2020 and has been declared a ‘Public Health Emergency of International Concern (PHEIC)’ by World Health Organization (WHO). Up to now, it is still spreading in the global scope, which is also a severe test for the international public health governance system. Taking Corona Virus Disease (COVID-19) as an example, this paper...COVID-19 broke out in January 2020 and has been declared a ‘Public Health Emergency of International Concern (PHEIC)’ by World Health Organization (WHO). Up to now, it is still spreading in the global scope, which is also a severe test for the international public health governance system. Taking Corona Virus Disease (COVID-19) as an example, this paper attempts to study the response mechanism of PHEIC under the current norms of international health law and understand the content and characteristics of PHEIC in IHR as well. At the same time, the article selects two major problems about unequal distribution of health resources and excessive epidemic prevention and health measures which exposed during the epidemic to discuss. Then, through reading articles of other scholars, some feasible suggestions for modifying IHR in the future were put forward. This paper also compares and analyzes some real data collected during the epidemic period, and tries to analyze the differences between international law norms and the actual behavior of governments and international organizations in the face of the epidemic. The results show that the reason lies not only in the imperfection of international law norms and regulatory system, but also in the unbalanced development among countries. Consequently, in order to improve the PHEIC mechanism, it is necessary to strengthen the constraints of international law on all parties, and at the same time, it is useful to pay attention to the core national capacity, that is, countries should strive to improve their basic medical level.
Zhao, L and S Sun, ‘Legal Issues and Challenges in Addressing the Coronavirus Outbreak on Large Cruise Ships: A Critical Examination of Port States Measures’ (2021) Ocean and Coastal Management (forthcoming) Abstract: International cruises have drawn worldwide attention since the outbreak of coronavirus (COVID-19). This article first examines the legal issues, challenges and impact of the pandemic on large cruise ships, like the Diamond Princess, and then probes into corresponding pandemic preventive measures which port states employ. A State is obliged under the International Health Regulations 2005 (IHR) to grant foreign cruise ships free pratique, but there is an exception when public health emergencies of international concern occur. Therefore, this article argues that a port state is not obliged to allow foreign cruise ships to dock at its port at the cost of its domestic public health safety. Regarding the Diamond Princess, the Japanese government has undertaken pandemic preventive measures upon passengers on board the ship and complied with its domestic laws, including the Japanese Quarantine Act. This article further evaluates whether a port state’s pandemic preventive measures concerning cruise ships are appropriate from the perspective of law. More importantly, it is necessary to consider the characteristics and specialities of international cruise ships to improve future pandemic preventive measures against large passenger ships and cruise passengers.
Zimmermann, Rahel, ‘The World Health Organization as Actor in International Environmental Law? An Analysis by Example of the Global Waste Challenge’ (2021) 30(3) Review of European Comparative & International Environmental Law 363–374 Abstract: In recent years, it has proven increasingly difficult to persuade states to adopt new environmental commitments and to comply with their obligations already agreed upon under international environmental law. This begs the question how international environmental law could gain new momentum. This article suggests that a stronger emphasis on the health aspects of environmental problems could drive the international community to better respond to environmental problems. Such a shift of perspective could best be illustrated at the international level if the World Health Organization (WHO) takes on environmental issues. Therefore, this article analyses, by example of the global waste challenge, the WHO’s Constitution and the International Health Regulations (2005) to determine its potential and limitations as an actor in international environmental law. The article argues that the WHO should use the ongoing COVID‐19 pandemic to step up its commitment towards the environment, strengthen the ‘One Health’ approach and thereby help international environmental law regain momentum.
Zu, Yige, ‘Developing VAT Treaties: International Tax Cooperation in Times of Global Recovery’ (2022) 42(1) Legal Studies 159–177 Abstract: The Covid-19 pandemic highlights the pressing need to address common challenges faced by all countries and, in particular, provide special support to developing countries through international cooperation. Taxation, in particular Value Added Tax (VAT), is a key area for strengthening international cooperation because of its critical role in financing the Covid-19 crisis and supporting global recovery. This paper proposes the adoption of VAT treaties based on two considerations. First, there exist, in the interplay between states’ VAT laws, over-taxation and under-taxation that can be more effectively addressed by treaties than by unilateral state actions. Secondly, unlike income tax treaties, VAT treaties would distribute more benefits from cooperation to developing countries than to developed countries, leading to normatively attractive distributional consequences. The proposed model offers a new approach to taxing cross-border transactions under VAT and could form part of a coordinated response to a sustainable post-pandemic recovery.
Zysset, Alain, ‘To Derogate or to Restrict? The COVID-19 Pandemic, Proportionality and the Justificatory Gap in European Human Rights Law’ (2022) 4(3) Jus Cogens 285–301 Abstract: In this paper, I offer an analytical and normative framework to re-visit the question of whether state parties should derogate from the European Convention on Human Rights (ECHR) in order to combat the COVID-19 pandemic via harsh ‘lockdown’ measures. It is three-pronged. First, I show that the predominant debate on the (non-)derogation question is informed by a textual approach to adjudication, which severely limits the analytical and evaluative horizon for addressing the issue. Most importantly, it cannot address one salient fact about the effects of lockdown measures, namely their highly disproportionate effects on vulnerable groups and minorities. Second, I argue that proportionality assessment should be the basis for determining whether state parties ought to derogate or not. This is because proportionality’s very purpose is in part to track the effects of state interferences on minorities and vulnerable groups by measuring the disproportionate burden imposed on them. It is also because proportionality assessment has very different requirements between limitation clauses built into the relevant Convention articles (e.g. Article 5, Articles 8–11) and the derogation clause (Article 15) under the ECHR. Surprisingly, while the emerging literature almost always mentions proportionality as an important component of the analysis, it does not investigate the extent to which each regime (derogation or limitation) better performs it, and why. Third, I draw from the philosophical literature on the ‘right to justification’ to clarify the egalitarian and justificatory function of proportionality. Unlike derogation, limitation clauses have a much higher and systematic requirement of justification, which makes the case for non-derogation clearer and stronger.
International Economic Law
This section includes literature on international trade law, international investment law, and sovereign debt. Literature on patent law and the TRIPS agreement is in the Intellectual Property section of this bibliography. 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
- Ben Oramah, ‘On COVID-19, AfCFTA and the Role of the Afrexim Bank as Pan-African Multilateral Trade Finance Institution’
- Daniel Omoro Achach and Patrick Wasonga Anam, ‘Of the Global Rush for Personal Protective Equipment, Regional Value Chains and Lessons for Africa’
- Chibole Wakoli, ‘COVID-19 in Africa: A time for Despair or an Opportunity to Change the Direction of Travel?’
- David A Gantz and Bashar H Malkawi, ‘Short and Fast or Long and Slow? The Economic Impact of the Coronavirus’
- Nojeem Amodu, ‘Free Zones, COVID-19 Lockdown, and ‘the Morning After’’
- Sendra Chihaka, ‘COVID-19: Africa’s Chance to take Advantage of Regional Production’
- Marie Valerie Uppiah, ‘The COVID-19 Pandemic: An Opportunity for African States to Review their Shipping Industry Strategy’
- Francis Kofi Korankye-Sakyi, ‘Fighting the COVID-19 Today: A Reflection on Positioning the AfCFTA for the Future’
- Timothy Masiko, ‘Globalisation and COVID-19: What can African International Economic Law Learn?’
- Franziska Sucker, ‘COVID-19 pushes digital solutions and deepens digital divides: What role for African digital trade law?’
- Tinyiko Ngobeni, ‘State Responsibility for COVID-19 Regulatory Measures under International Economic Law’
- Nanjira Annabel, ‘Justifying COVID-19 Exportation-Related Quantitative Restrictions within the framework of the World Trade Organization Law’
- Jason Cotton, Jan Yves Remy and Alicia Nicholls:’ COVID-19 Makes the Case for Our Trade Vulnerability Index’
- Clair Gammage and Olabisi D Akinkugbe, ‘COVID-19 and South-South Trade & Investment Cooperation: Three Emerging Narratives’
- Ocholla Akoth, ‘International Economic Law in the Shadow of COVID-19: Perspectives from Least Developed Countries’
- Matiangai Sirleaf, ‘Africa, COVID-19 and Responsibility’
COVID-19 Symposium III: Sovereign Debt, Finance and Competition Law
- Vellah Kigwiru Kedogo, ‘COVID-19, Trade and Competition Law in Africa’
- Maria Adele Carrai, ‘African Sovereign Debt at a time of Pandemic: Legal Justifications for Suspension or Cancellation’
- Maria Elisa Vera Madrigal, ‘On Pandemics and Other Demons: Coronavirus-related Corruption and How to Prevent it’
- Samuel Mwangi Muchori, ‘Global South International Financial Institutions and COVID-19 Response: Utilising Innovative Financing Solutions now and after the Pandemic’
- Rushmi Matete, ‘An African Perspective of Fiscal Policies and Debt management in the wake of the COVID-19 Pandemic’
- Danny Bradlow, ‘Doves, Vultures and African Debt in the Time of COVID-19’
- Jason Rosario Braganza, ‘PanDEBTmic – Potential Impact of the COVID-19 Pandemic in Kenya’
- Tafadzwa H C Kwaramba, ‘Sovereign Debt and the COVID-19 Pandemic’
COVID-19 Symposium IV: Governance, Rights, and Institutions
- Pedi Obani, ‘Human Rights Compatibility of Trade in WASH Services in the African Continental Free Trade Area’
- Dunia Prince Zongwe, ‘COVID-19 – The Great (Un)Equalizer’
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.
Agrawal, Akshat, ‘Waiving Windfalls: The Socio-Legal and Contextual Justification of a “TRIPS Waiver” during the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3960967, 10 November 2021 Abstract: Distributive concerns in respect of IP, especially in the context of pharmaceuticals, are nothing new. The histories of inequity in bargaining towards a multilateral agreement as well as in its implementation has been widely documented. However, with the COVID-19 pandemic, and its gruesome, rather focally visible, impact on access to health, there ought to be a shift in conversation beyond IP internalism, questioning the fundamental inequities which come with TRIPS. This paper goes on to highlight aspects of inequity in institutionalizing IP regimes across the world, and focusses on IP Gradualism, and the lack of it. It builds on narratives of capability building, the hypocrisy of transition periods, and its impact on the global political economy of IP institutions across nations. The paper is an attempt to defog the historical realities that have resulted in skewed capabilities, which are clearly being exposed during such a pandemic, leading to a situation where a part of the world, which was clearly not allowed to pursue sovereign self-determination for over centuries, is having to ‘beg’ for a waiver of the same agreement which is the fundamental basis of situating this inequity, albeit to no effect. The paper discusses the prolonged practice of ‘absorption’ and imitative learning practiced by nations currently opposing the waiver, and uses time as a metric, to lay down certain realities that are important and ought not be ignored while debating the waiver, even at a diplomatic level. The primary normative point which the paper makes is that getting rid of this knowledge and capability divide, during these critical times, and in fact De-Colonizing IP, requires an alternate accent - where global trade ought to be looked at from the eyes of geo-historical attentiveness. The essence of distributive justice, especially in the grim situation that we face today, lies in realizing the importance of the historical context, i.e., this context of prolonged inability, not due to controllable forces or complacency or a lack of merit, but rather due to global acts of suppression, accounted for in history. As a corollary to this normative claim, this paper also discusses the practice of grating ‘Waivers’ under the WTO Agreement to show as to how the debate around waiving TRIPS obligations should have a clear favourable outcome, given the historical situations and circumstances in which such waivers have been granted. The legal limelight is on exposing the hypocrisy in the interpretation of ‘Exceptional Circumstances’ under Article IX.3 of the WTO Agreement, further supporting the normative claims of inequity, need for context, and the fundamental restructuring of this global diplomatic regime. The final attempt of this paper is to harp upon the fact that the need of the hour is one of global solidarity, which cannot in fact be pragmatized unless one is forced to face these historical realities to consciously realize the context, and as I might as well say – the reasons, for the inequity that we see today. The context needs to be out there, and this paper is an attempt towards the same.
Ala, Padideh and Clemence Kim, ‘The WTO and Pandemics’ (2021) 36(5) American University International Law Review 1035–1051 Abstract: The COVID-19 pandemic presented the world with a once-in-a-century public health challenge. At the height of the pandemic, measures to curb the disease shut down large swaths of the global economy while worldwide demand for international trade in medical products to fight the pandemic increased, as did dependence on global supply chains to source medical products. The World Trade Organization (WTO) has played an important role in ensuring transparency and market access for trade in medical goods despite the political, legal, and logistical difficulties COVID-19 and the rise of protectionism presented. However, the WTO is positioned to do more by taking a more active role in securing the movement of medicines and medical supplies in this and future pandemics. The WTO is in need of a revised, twenty-first century mandate. The world has changed not only since the Bretton Woods framework was set up in 1947, but also since the conclusion of the Uruguay Round negotiations that led to the establishment of the WTO on January 1, 1995. This public health challenge can help the WTO reassert and refine its mission at a time when its trade negotiations have been largely moribund and its dispute settlement mechanism under attack. It is significant that the WTO’s new Director General, Ngozi Okonjo-Iweala, was previously the Chair of the Global Alliance for Vaccines and Immunizations (GAVI) and has made vaccine production and distribution a priority for the WTO. On June 15, 2021, the Directors General of the WTO, World Health Organization (WHO), and World Intellectual Property Organization (WIPO) met to agree on further strengthened cooperation for access to medical technologies to tackle the COVID-19 pandemic. This essay will explain briefly how the WTO, as a member-driven institution, has evolved and the challenges it faces that predate the COVID-19 pandemic. It then looks at some of the WTO mechanisms and actions that have already played a role during the COVID-19 pandemic and finally will discuss the potential future role for WTO in cases of future pandemics.
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.
Arimoro, Augustine Edobor, ‘Private Sector Investment in Infrastructure in Sub-Saharan Africa Post-COVID-19: The Role of Law’ (2022) Public Works Management & Policy (advance article, published online 29 December 2021) Abstract: Sub-Saharan Africa (SSA) is the lowest income region of the world with a considerable number of low-income countries. The region is challenged by a massive infrastructure deficit. In recent years, the governments of the countries in the region have expressed the desire to bridge the huge gap in infrastructure assets through a partnership with the private sector using the public-private partnership model. However, the advent of the Coronavirus (COVID-19) pandemic which has resulted in unplanned public sector expenditure poses a new kind of hurdle to climb for states in the region. As such, there is a need for governments in SSA to create and sustain efficient opportunities for private sector investment in infrastructure procurement and maintenance. This article adopted the doctrinal legal research method as well as review of literature in the examination of the role of law in creating a healthy and sustainable business environment for private sector participation in infrastructure financing and operation in a post-COVID-19 era in the SSA region. The article recommends among others, the enactment of legislation to create an enabling environment for raising domestic capital for the purposes of private sector–led public infrastructure procurement as well as the implementation of strategies suited for developing economies to attain successful outcomes in private sector backed infrastructure procurement.
Arlota, Carolina, ‘The Impact of the COVID-19 Pandemic on Foreign Investment and Investment Arbitration: From Energy Transition Disrupted to the Path Forward to a Greener Future’ (2022) 15(5) The Journal of World Energy Law & Business 382–395 Abstract: Foreign investment in the energy sector is complex during the best of times. The challenges posed by the COVID-19 pandemic (and its intertwined economic crises) increased competition for foreign investment and strengthened the perennial quest for climate justice. The pandemic added complexity to both domestic and international spheres of governance, which led to calls for a suspension or even a cancellation of arbitration claims involving foreign investments. As developing and developed countries compete for financial resources to transition to a carbon-neutral society, such a suspension or cancellation is of academic and practical interest. Accordingly, this article discusses the impact of the pandemic on foreign investment in the energy sector, focusing on investment claims. It assesses competing views involving the proposed revisions (namely, suspensions and cancellations) and their consequences based on a law and economics perspective. This article also examines how foreign investments that align with the United Nations Sustainable Development Goals may foster the transition to a greener future. Ultimately, this article offers relevant insights that are likely to be applicable to critical future disruptions, whether they occur due to global economic crises or climate-related emergencies.
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).
Ayalew, Dessie Tilahun, ‘The Application of Force Majeure and Hardship Clauses in Ethiopia and China in Light of International Law in Situations of COVID19 Pandemic: The Law and Practice’ (2023) 4(3) Journal of Marketing Management and Consumer Behavior 1-25 Abstract: COVID-19 pandemic has multiple consequences and knocked multiple disciplines after its occurrence throughout the globe. Among the disciplines touched by the pandemic is the role of law presented as an excuse for the responsibility of non-performance of owing to the pandemic. The COVID-19 pandemic highly affects international commitments, such as international investment contracts and other similar undertakings. Therefore, this paper questioned the status of international law in giving immunities for states for non-performance of international obligations during the pandemic periods. In doing so, the paper tried to compare and contrast the legal system of China and Ethiopia by taking international commercial law as a mirror. The findings revealed that most jurisdictions give immunities for the non-performance of the states’ commitments owing to the COVID-19 pandemic.
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.
Bian, Cheng, ‘Investment Screening Put to the Test of the Covid-19 Pandemic: Typology, Legality and Externality’ (2023) 31(2) Asia Pacific Law Review 380–401 Abstract: The Covid-19 Pandemic has introduced or revived a concern in the foreign direct investment (FDI) context that was less emphasized pre-Pandemic, namely public health. This article discusses the typology of Covid-19 related FDI screening, expounds on the legality of these measures in the context of both national investment law and international investment law, and identifies the potential negative externalities to foreign investors and to the host state. Newly promulgated FDI screening measures intensify governmental intervention and scrutiny in cross-border takeovers in the health sector and beyond to protect domestic companies from being taken over by predatory foreign buyers. FDI screening during Covid-19 has become more comprehensive and inclusive in its scope than what was already considered a system capable of excessive and arbitrary use pre-Pandemic. FDI screening on grounds of public health may be justified for its legality under both national and international investment law, nonetheless certain conditions need to be satisfied. The negative externality of FDI screening during Covid-19 pertains to a concern that, if applied aggressively in practice, FDI screening might potentially result in a deterrence effect on the cross-border capital flow that is much needed for market revival after a global economic shutdown.
Bjorklund, Andrea K, ‘Force Majeure in International Law During a Pandemic: Lessons from the COVID-19 Crisis’ in Philippe Bourbeau, Jean-Michel Marcoux and Brooke A Ackerly (eds), A Multidisciplinary Approach to Pandemics: COVID-19 and Beyond (Oxford University Press, 2022)
Borlini, Leonardo, ‘The Covid 19 Exogenous Shock and the Crafting of New Multilateral Trade Rules on Subsidies and State Enterprises in the Post-Pandemic World’ (2023) 24(1) German Law Journal 72–101 Abstract: This Article discusses existing WTO rules on subsidies and state enterprises, relevant caselaw and reform prospects in light of key geopolitical developments and changes in the global economy emerging in the aftermath of the Covid-19 pandemic. Following a general introduction, the Article critically analyzes present WTO rules on industrial subsidies, focusing inter alia on the new problems raised by activist industrial policies pursued by global trading powers, foreign subsidization, the climate change shock and environmental exigencies. It then shifts attention to the application of WTO rules on subsidies to the state sector and the increasing demands for new international trade rules on non-subsidies measures to address the negative spillover effects on trade from government influence on state-owned enterprises (SOEs). With respect to each of these matters, the Article first clarifies the terms of the problem in relation to existing WTO rules and caselaw, and next examines the question of how, and to what extent, ‘deeper’ free trade agreements (FTAs)—those that experts designate as models for WTO reforms on the matter—establish new rules that permit to adequately address the trade concerns raised by SOEs’ commercial and financial activities. Based on this multi-layered analysis, the article concludes by examining prospects of reform of WTO rules on state interventionism.
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.
Borlini, Leonardo, ‘Economic Interventionism and International Trade Law in the Covid Era’ (2023) 24(1) German Law Journal 1–16 Abstract: Economic interventionism in the form of subsidization and operation of state-owned enterprises (SOEs) is today among the main frontlines of international trade conflicts. Along with trade restrictions and new legislation designed to impact cross-border investment, mergers, and acquisitions, the use of subsidies and countervailing measures by governments and trade-distorting effects of SOEs have lately caused harsh controversies within and outside the World Trade Organization (WTO) between its members. Going forward, there are reasons to expect these tensions to intensify rather than diminish in number and importance. This Special Issue aims at examining the development of international trade rules regulating state interventionism against the background of the Covid-19 global pandemic and present shifts in global geopolitics and the economy. This introduction, in presenting the state of the art on the questions tackled by this Special Issue and highlighting its contribution to existing literature on the topic, offers different considerations aimed at bringing together various trends emerging from the Articles contained in this Special Issue. It also explores avenues for further research and reflection.
Bown, Chad P, ‘The WTO and Vaccine Supply Chain Resilience during a Pandemic’ (2023) 26(2) Journal of International Economic Law 343–362 Abstract: Cross-border supply chains and international trade enabled the manufacturing and delivery of billions of vaccine doses to inoculate the world against the Coronavirus disease (COVID-19). At the same time, the pandemic revealed how the World Trade Organization (WTO) must change to become more useful in the face of a public health emergency. This paper describes the market failures—especially on the supply side—justifying the domestic subsidies and contracting arrangements used to accelerate vaccine research and development and to increase the scale of vaccine production to save lives, livelihoods, and economic activity during a pandemic. It highlights the trade-offs associated with the US subsidies and the priority-rated contracts written for vaccines through the Defense Production Act under Operation Warp Speed. This case study reveals a rich environment in which cross-border supply chains exacerbate input shortages in ways that constrain vaccine production, highlighting the need for the WTO to embrace new forms of international policy coordination for pandemic preparedness and response. As part of a pandemic treaty, the paper proposes a plurilateral agreement on vaccine supply chain resilience that would include novel and enforceable disciplines for export restrictions, provisions to trigger coordinated subsidies across countries to jointly scale up vaccine output and input production capacity, and market surveillance initiatives on supply chain transparency.
Bradlow, Daniel D and Magalie L Masamba, COVID-19 and Sovereign Debt: The Case of SADC (Pretoria University Law Press, 2022) [OPEN ACCESS BOOK] Book summary: This multi-disciplinary publication focuses on the issue of African sovereign debt management and renegotiation/ restructuring, with a particular concentration on the countries that are members of the Southern Africa Development Community (SADC). It contains a series of essays that were initially presented in several workshops held at the height of the pandemic, in 2020. These essays seek to both understand the debt challenges facing these countries and to offer some policy-oriented suggestions on how they can more effectively address these. They include contributions by global and regional scholars who are seasoned experts and newer researchers and discuss the complexities on debt management and restructuring within the context of the global COVID-19 pandemic. In particular, this presented an opportunity for junior researchers from the region to contribute to international discussions on a topic in which the views of young Africans are not heard as often or as clearly as they should be, especially given the importance of the topic to Africa and its future. Further, this book is expected to stimulate debate among academics, activists, policy makers and practitioners on how SADC should manage its debt.
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.
Breydo, Lev, ‘Health of Nations: Preventing a Post-Pandemic Emerging Markets Debt Crisis’ [2022] Nevada Law Journal (forthcoming) Abstract: Currently, 60% of low-income countries are at ‘high-risk’ of insolvency, necessitating debt relief, according to the International Monetary Fund. The enormity of the problem cannot be overstated; prospective economic collapse threatens hundreds of millions around the world.At the same time, the tools to address these challenges are wholly inadequate. Typically, debt reduction is effectuated through statutory mechanisms; sovereign debt is a critical exception, as there is no bankruptcy court for countries. Historically, this void was filled through a complex architecture based on custom, ‘soft law’ and contractual mechanisms. However, that construct has grown increasing ill-suited for contemporary challenges. A new system for sovereign debt renegotiation – the Common Framework – was established in late 2020 to much fanfare. It has universally underwhelmed. This Article is the first to analyze the Common Framework, finding that it has failed because: (i) it lacks institutional infrastructure; (ii) exacerbates conflicts amongst creditors; and (iii) delivers insufficient benefits for debtors, including unduly restricting many nations – perhaps most pertinently, Ukraine. Yet, the Common Framework arguably remains the most viable toolset for addressing the coming sovereign debt crisis – thus, it must be amended, rather than discarded. To that end, this Article prescriptively recommends a number of steps. Most significantly, to support Common Framework implementation, the Article proposes establishing a ‘Coordinating Forum’ – a mechanism distinct from a court of law, instead intended to fill critical gaps in informational and coordinating infrastructure. At the same time, the Common Framework should provide greater benefits for debtors, while being open to more nations. Finally, it must require private investors to share the burden, with an emphasis on leveraging innovative ESG and climate-linked instruments – with Belize’s recent restructuring, which tied debt reduction to environmental conservation, providing a template.It is imperative that policymakers develop sufficient tools to address the coming sovereign debt storm. The economic and public health implications cannot be overstated; no nation should be forced to choose between vaccines and interest payments.
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’ n Werner Gephart, (ed), In the Realm of Corona Normativities: A Momentary Snapshot of a Dynamic Discourse (Vittorio Klostermann, 2020) 195–208 [draft chapter available on SSRN] 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.
Chaisse, Julien, ‘International Economic Law and the COVID-19 Sanitary Crisis: An Introduction’ (2021) 18(2) Revista de Direito Internacional / Brazilian Journal of International Law 27–33 Abstract: The sanitary crisis has already had a substantial influence on the global economy, with restrictions on sanitary material exports, interruption of international transportation, increased screening of foreign investment, and challenges to intellectual property rights. It has compelled states to reconsider their core interests and national security, for example, in terms of maintaining pharmaceutical and vaccine manufacturing capacity. In addition, the lockdowns adopted in many countries have raised questions about their conformity with the existing free trade and investment treaties, and about the rationale of exceptions and derogations in these treaties. The economic consequences of the crisis have resulted in huge stimulus packages by national governments, putting a strain on the public exchequer and increasing debt. Financial experts also anticipate that the public debt to GDP ratio of most developed as well as emerging nations would further skyrocket and therefore the IMF, development banks, and other international financial institutions have been mobilized to meet the current and forthcoming financial needs of the most affected economies. Consequently, these diverse topics need a legal discussion, with an emphasis on the States’ unique reactions and practices in their economic interactions, as well as the possibility of a post-COVID-19 world economic order.
Chieng, David, ‘Supply Chains, COVID-19 and the GATT Security Exception: Legal Limits of “Pandemic Exceptionalism”’ (2021) 39(1) The Australian Year Book of International Law Online 13–31 [pre-published version available on SSRN]
Chen, Vivien and Weitseng Chen, ‘Chinese Investment in Malaysia: COVID-19, Democracy and Beyond’ (2023) Asian Journal of Comparative Law (advance article, published online 25 January 2023) [pre-published version of article available on SSRN] Abstract: China’s rising influence in parts of the developing world has raised concerns among the US and its allies. In the wake of the COVID-19 outbreak, the provision of vaccines and aid to countries in the Global South have further heightened anxieties over the potential for diffusion of China’s ideals. China’s investments are thought to promote the diffusion of its perspectives of rule of law and democracy, posing a challenge to the global dominance of Western liberal democratic values. Nonetheless, few studies have examined how the diffusion of China’s ideals may occur through its investments and infrastructure projects in young democracies such as Malaysia whose governance and legal system significantly outperform China’s according to various global indexes. This article investigates the increasing engagement with China and the reasons for this trend against the backdrop of Malaysia’s legal and political institutions inherited from the West. It considers how young democracies like Malaysia are vulnerable to China’s influence, intentional or unintentional, through investment. The analysis sheds light on the mechanisms that give rise to such vulnerability, exploring how the electoral system and rule of law may facilitate and amplify the impact of Chinese investment, with broader implications. Shared tacit understandings, such as the instrumentality of law and the nexus between state and business, which facilitate cross-country cooperation are also examined.
Chow, Daniel CK, ‘Export Restrictions in the Post-COVID World: Another Step in the Demise of the World Trade Organization’ (2022) 25(3) Journal of International Economic Law 507–515 [pre-published version available on SSRN] Abstract: Since their inception, the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade (GATT), has focused on dismantling import trade restrictions and paid little attention to export restraints. As Chien-Huei Wu’s book, Law and Politics on Export Restrictions, explains, most modern export restrictions in the United States can be traced not to the GATT/WTO but to Cold War concerns over regulating East West Trade. Today, the United States has increasingly used national security interests to justify both export and import restrictions on its trading partners, especially China. The future development of export restrictions will likely occur outside of the GATT/WTO, already under attack by the United States, and could help accelerate its demise.
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))
Connelly, Stephen et al, ‘The G20 Debt Service Suspension Initiative: What of Commercial Creditors?’ (2020) 35(11) Butterworths Journal of International Banking and Financial Law 741–743 Abstract: The Debt Service Suspension Initiative (DSSI) for Poorest Countries provides for a time-bound suspension of debt repayments to public creditors. Commercial creditors, however, are not so bound. Earlier this year there was an initiative to introduce a moratorium on debt service on sovereign bond contracts governed by English law entered into by highly indebted states, which was considered as part of the Corporate Governance and Insolvency Bill 2020 (CIGB). The draft legislation, aimed at freeing up resources for those countries to support health, humanitarian and social and economic measures during the COVID-19 pandemic, was blocked at the last minute. Whilst the proposal did not fit with the UK-focused aims of CIGB 2020, the issues remain and are discussed in this article.
Connelly, Stephen, Karina Patricio Ferreira Lima and Celine Tan, ‘Proposal for Debt Suspension Legislation’ (SSRN Scholarly Paper ID 3935371, Social Science Research Network, 3 June 2020) Abstract: This is a proposal for a statutory stay on recovering commercial debt repayments owed by low-income countries to free up resources to combat COVID-19. The proposal enhances the effect of the Debt Service Suspension Initiative committed to by the G20 and Paris Club official creditors and voluntary arrangements of private creditors.The current proposal is time-bound, does not interfere with the underlying contractual rights of parties to the contract and is contingent on the country subject to such claims making a suspension request to the court.
Côté, Charles-Emmanuel, Richard Ouellet and Jean-Michel Marcoux, ‘Pandemics and the Use of Exceptions in International Economics Law: One Step Forward, Two Steps Back?’ in Philippe Bourbeau, Jean-Michel Marcoux and Brooke A Ackerly (eds), A Multidisciplinary Approach to Pandemics: COVID-19 and Beyond (Oxford University Press, 2022)
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.
Davin, Sophie, ‘Epidemics and Investment Law: A Host State’s Perspective’ in Shinya Murase and Suzanne Zhou (eds), Epidemics and International Law (Brill Nijhoff, 2021) 475
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.
Farah, Paolo Davide and Davide Zoppolato, ‘Public Ownership and the WTO in a Post Covid-19 Era: From Trade Disputes to a “Social” Function’ (2022) 25(Fall) West Virginia Law Review 644–688 Abstract: Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated in the 1980s and the advent of economic neoliberalism. The aim of the present research is to examine and understand how International Economic Law addresses public ownership. This paper is structured as follows. After the introductory remarks, Section II covers the relationship between public ownership and international economic law. Section II expounds the existing and historical regulatory framework on a state’s interference into the market and the more recent impetus to regulate State-Owned Enterprises (SOEs) in bilateral and regional Free Trade Agreements (FTAs). Section III moves the analysis to China and highlights the challenges to international economic law and WTO Law brought on by Chinese SOEs and the lack of regulation in this context. Lastly, the article analyzes the increase in the use of SOEs to counteract the COVID-19 pandemic and assesses how the relationship between the state and the market will likely change as a result. We argue that in light of the severity of existing global challenges, the ‘social function’ of public ownership and a more proactive role of the State in the economy could enable a more just transition, where the balance between economic development, social values, and a healthy and clean environment will be struck.
Gadkari, Ahan, ‘Legality of Export Restrictions Imposed during COVID-19 in International Economic Law’ (2023) Journal of International Trade Law and Policy (advance article, published online 3 May 2023) Abstract: This paper aims to examine options under the General Agreement on Tariffs and Trade (GATT) for exempting or justifying export restrictions or prohibitions that are in principle prohibited under Article XI:1 GATT. The paper begins by examining the exception under Article XI:2 (a) GATT, before going on to the arguments under GATT Article XX (b) and (j). In addition, the analysis considers the national security exception in Article XXI (b) (iii) GATT, given that WTO members have increasingly invoked this provision in recent years, as well as during the pandemic, when Namibia implemented COVID-19-related trade restrictions under the Agreement on Technical Barriers to Trade based on national security concerns. The impacts of the COVID-19 pandemic on trade have been far-reaching. Countries have attempted to place export restrictions on personal protective equipment and COVID-19 vaccines. Even though export restrictions are generally unlawful under the GATT, countries have decided it is necessary at this time. Members have relied heavily on the ‘national security’ and ‘critical shortage’ exceptions outlined in the GATT. This paper concludes that, depending on the circumstances of a particular case, a pandemic may constitute an emergency in international relations, as defined in Article XXI (b) (iii) GATT, and that, in such a situation, a WTO member may legitimately take action to protect its vital security interests.
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.
Hailes, Oliver, ‘Police Powers in a Pandemic: Investment Treaty Interpretation and the Customary Presumption of Reasonable Regulation’ (LSE Legal Studies Working Paper No 8/2023, 10 April 2023) Abstract: The COVID-19 pandemic triggered calls for a moratorium on investment treaty arbitration to ensure that States could adopt a range of health, social, and economic measures. But such measures already fall under a presumption of customary international law that there is no State responsibility for reasonable regulation of foreign investment. Here I trace this regulatory dimension of territorial sovereignty and its systemic integration in investment treaty interpretation, reflected in arbitral references to the police powers doctrine, the right to regulate, and a margin of appreciation. A heightened presumption is supported by classical practice on the treatment of alien property in times of infectious disease—including the cases of the Azorian (1861), Lavarello (1893), and Bischoff (1903)—but may be conditioned today by the 2005 International Health Regulations (IHR) of the World Health Organization (WHO). Given the defined scope of a public health emergency of international concern (PHEIC), the proportionality inquiry mandated by Article 43 of the IHR has limited relevance for investment treaty interpretation in claims arising from the social and economic aftermath of a PHEIC.
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.
Haynes, Jason and Antonius R Hippolyte, ‘The Covid-19 Pandemic and the Potential for Investor-State Claims: A Caribbean Perspective’ (2021) 21(2) Oxford University Commonwealth Law Journal 212–249 Abstract: The Covid-19 pandemic has wreaked havoc on Caribbean countries. These countries have lost billions of dollars in foreign capital. Although the region’s peoples are currently being vaccinated, the damage already caused by Covid-19 remains immeasurable and will likely continue for many years. Irrespective of whether vaccination results in herd immunity, Caribbean countries not only face the unenviable challenge of recalibrating their economies post-Covid-19, but also the prospect of being hauled before arbitral tribunals in respect of claims brought by investors alleging breaches of investor protection standards as a result of measures taken in response to the pandemic. To the extent that there is a real risk of claims of this nature arising in future, this article contends that Covid-19, as an unprecedented event, exposes the asymmetrical nature of the international investment regime, and its inability to fully countenance the domestic realities of developing countries that are confronted with existential threats.
Heriyanto, Dodik Setiawan Nur and Jihyun Park, ‘Impact of the Pandemic Covid-19 on International Trade Law’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 1–7 Abstract: The Coronavirus outbreak has caused significant and multidimensional changes to our lives. In terms of international trade relations, the uncoordinated and non-uniformity state policies become one of obstacles to provide a trading climate responsive to global needs. A very detrimental impact is the existence of restrictions on trade traffic as part of the efforts of each country to mitigate international trade. On the other hand, international trade can also be an opportunity to develop technology and information sharing facilities, especially in the distribution of medical supplies. Using a normative research methodology, this study analyzes the impact of the COVID-19 pandemic on international trade relations. In addition, this study also analyzes the need of responsive trade measures in overcoming trade issues to respond to the global need for access to medical supplies.
Hilty, Reto et al, ‘Position Statement of 5 July 2022 on the Decision of the WTO Ministerial Conference on the TRIPS Agreement Adopted on 17 June 2022’ (Max Planck Institute for Innovation & Competition Research Paper No 22–14, 5 July 2022) Abstract: On 17 June 2022, after nearly one and a half years of intense debate concerning the proposal to waive IP protection in view of the COVID-19 pandemic, the Ministerial Conference of the World Trade Organization adopted a decision on the TRIPS Agreement. It has not waived any intellectual property rights as such but instead mainly clarified the application of the existing TRIPS flexibilities, in particular, regarding compulsory licensing of patents. The Position Statement shows that the Ministerial Decision makes no substantive difference in the existing international legal framework, except for lifting the limitation on the exportation of vaccines manufactured in accordance with the Decision. To the extent that the Decision can make the application of TRIPS flexibilities more expedient, it is to be welcomed. At the same time, it is argued that such facilitating effect should not be limited to, or justified by, the exceptional circumstances of the COVID-19 pandemic. More critically, it should not be restricted to COVID-19 vaccines, of which there is currently no shortage – rather, the same level of TRIPS flexibilities should apply to all medicinal products needed to overcome the COVID-19 pandemic.
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.
Igbozurike, John Kennedy, ‘Unraveling the Quandary of Covid-19 on Commercial Transactions Especially in the Wake of Supranational Regulations’ (SSRN Scholarly Paper No 4519972, 24 July 2023) Abstract: Central to the efficacy of commercial activity is mobility – lots of it. To this effect, we have in place, the World Trade Organization (WTO) Rules and the African Continental Free Trade Area agreement (AfCFTA) - some instruments responsible for the regulation of supranational trade and ancillary commercial activities within the globe and Africa respectively. This dissertation seeks to open a discourse along the lines of the implication of border closures on supranational pacts like the General Agreement on Tariffs and Trade (GATT) and the AfCFTA. For apt context, this thesis has recourse to the principle of pacta sunt servanda. Undoubtedly, the digital commerce phenomenon has unlocked seamless trade opportunities. However, these opportunities can only be fostered by mutual supranational trade understanding. To this effect, further emphasis is placed on the role of the AfCFTA in the mitigation of the impact of the pandemic on commercial activities within Africa and ultimately, the African economy.Still on state policy regulation, using Nigeria and the United States of America as models, the thesis asserts that the pandemic has brought to the fore; regulatory hitches at the municipal level specifically (potential) conflicts between tiers of government as they navigate the regulation of public health in a bid to foster seamless commercial activities within their jurisdictions. The lens of the thesis is particularly zeroed in on the U.S Commerce Clause, State Police Power, Nigerian authorities responsible for the issuance of quarantine orders, and regulation of health, safety, and welfare of persons engaged in interstate conveyance and commerce, to mention a few. What is more? The dissertation narrows its focus to the impact of the coronavirus on contracts entered into by individual parties, making allusions to court dispositions in different jurisdictions. The dissertation concludes by proposing a solution force majeure debate as well as a conflict resolution mechanism between the tiers of government in their bid to formulate policies touching on public health and commercial activities.
Jevremovic, Nevena, ‘Article 79 CISG: Testing the Effectiveness of the CISG in International Trade Through the Lens of the COVID-19 Outbreak’ in Poomintr Sooksripaisarnkit and Dharmita Prasad (eds), Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still? (Springer, 2022) 127–155 Abstract: The resilience of contracts and the role of contract law has been put to the test in responding to the global COVID-19 pandemic. Various government measures significantly impacted international trading relationships. Supply chain disruptions and uncertainty continue to pose a threat as different countries approach the pandemic with differing priorities and interests. Therefore, parties to international sales contracts seek to identify ways to keep existing commitments, protect against future losses, be compensated for losses they have suffered, and decide whether it is profitable to keep the contract in place. It is vital to examine the legal issues around the possible legal responses to the COVID-19 crisis. However, it is plausible that the lack of predictability regarding the scope, time, and location of governmental measures will introduce further complications. Moreover, the impact of the COVID-19-related measures extends beyond the contractual parties, contributing to adverse social consequences worldwide. The United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention) should reduce these complications by providing predictability and certainty in dealing with the consequences of the pandemic through its uniform rules. The reality, however, is far from ideal. The impact of COVID-19 will bring further challenges in the uniform application of the Convention; and it will do so through one of its most controversial provisions: Article 79. Through the lens of Article 79, this chapter will discuss the effectiveness of CISG as an instrument of public international law adopted with the goal of unification of international sales law. It will (re)consider the negotiation leading to the final text of Article 79, highlight trends in its interpretation and application, and consider possible routes to uniform interpretation and application in the post-pandemic era. In doing so, the chapter will explore whether and to what extent interpretation of Article 79 can encompass adverse social impact in trading relationships between the buyers of the global north and the suppliers of the global south.
Jevremovic, Nevena, ‘CISG & Proactive Contracting: Suspending Performance under Art. 71 CISG in Time of a Global Pandemic’ in Zlatan Meškić et al (eds), Balkan Yearbook of European and International Law 2020 (Springer, 2021) Abstract: The profound economic and social impact of the global COVID-19 pandemic put to the test the resilience of commercial relationships, pushing legal academia and practice to consider questions beyond the mere impact of certain institutes of civil or common law tradition: the role of the contract law in supporting the survival of affected trading relationships. The discussion under CISG has focused mostly on the interpretation and application of its provisions – notably Art. 79 – but did not go significantly further than that. This paper aims to contribute to the existing discussion in two ways. First, is to bring to the table a discussion around a remedy embedded in Art. 71 (1) & (3) CISG: the right of suspending performance. Second, to put such remedy in the context of proactive contracting, demonstrating the potential for its use in structuring and managing the pandemic (or any other event) going forward. The discussion will, therefore, focus on the current interpretation and application of Art. 71 (1) & (3) CISG, and will then move to clarify the ideas behind proactive contracting, and ways in which participants in international sales contracts can use Art. 71 (1) & (3) CISG to address performance and adaptability risks within their relationship.
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.
Kigwiru, Vellah Kedogo, ‘COVID-19, Trade and Competition Law in Africa’ (SSRN Scholarly Paper ID 4035277, 9 May 2020) Abstract: There has been calls from various organizations and key policy makers arguing that, countries must adopt effective trade policies and measures that should seek to maintain the trade during the COVID-19 pandemic. So what is the way forward for Africa? This paper briefly discusses the role competition agencies in Africa are playing to maintain trade during the COVID-19 pandemic.
Kohler, Jillian, Anna Wong and Lauren Tailor, ‘Improving Access to COVID-19 Vaccines: An Analysis of TRIPS Waiver Discourse among WTO Members, Civil Society Organizations, and Pharmaceutical Industry Stakeholders’ (2022) 24(2) Health and Human Rights Journal 159–175 Abstract: Throughout the COVID-19 pandemic, international access to COVID-19 vaccines and other health technologies has remained highly asymmetric. This inequity has had a particularly deleterious impact on low- and middle-income countries, engaging concerns about the human rights to health and to the equal enjoyment of the benefits of scientific progress enshrined under articles 12 and 15 of the International Covenant on Economic, Social and Cultural Rights. In response, the relationship between intellectual property rights and public health has reemerged as a subject of global interest. In October 2020, a wholesale waiver of the copyright, patent, industrial design, and undisclosed information sections of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) was proposed by India and South Africa as a legal mechanism to increase access to affordable COVID-19 medical products. Here, we identify and evaluate the TRIPS waiver positions of World Trade Organization (WTO) members and other key stakeholders throughout the waiver’s 20-month period of negotiation at the WTO. In doing so, we find that most stakeholders declined to explicitly contextualize the TRIPS waiver within the human right to health and that historical stakeholder divisions on the relationship between intellectual property and access to medicines appear largely unchanged since the early 2000s HIV/AIDS crisis. Given the WTO’s consensus-based decision-making process, this illuminates key challenges faced by policy makers seeking to leverage the international trading system to improve equitable access to health technologies.
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.
Lawson, Charles and Michelle Rourke, ‘The COVID-19 Pandemic and the TRIPS Waiver: Patents and Flexibility’ (2022) 29(3) Journal of Law and Medicine 663–676 Abstract: The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) provides for global minimum standard patents. These patents potentially limit access to products and processes for the surveillance, tracking, diagnosis and treatment of COVID-19. A possible solution currently under consideration is a TRIPS waiver of the implementation, application and enforcement for the prevention, containment or treatment of COVID-19. This article addresses the ways that TRIPS patents might be mediated including through TRIPS flexibilities. The article argues that there are sufficient means of derogating from patents (and potentially copyright, industrial designs and undisclosed information), although they alone will not resolve the access problems. The article concludes that the key patent problem is the transfer of know-how and that developing new ideas about addressing these patent know-how transfers is the presently unaddressed challenge.
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.
Levashova, Yulia and Pascale Accaoui Lorfing, Balancing the Protection of Foreign Investors and States Responses in the Post-Pandemic World (Kluwer Law International, 2022) Link to book page on publisher website
Book summary: This book is an expansive synopsis of the impact of COVID-19 on States and investors, including perspectives from UNCTAD, the European Union, the United States, Russia, India, South Korea and the African Union. This exhaustive guide on State defences and investor protection mechanisms grapples with the following aspects of the debate as affected by the pandemic: treatment of investors in times of pandemic and in the post-pandemic world; sufficient contribution to the economic development of the host State; disparities in bargaining power; and use of ‘pandemic power’ to accord preferential treatment. The concluding part of the book is devoted to analysing case studies from around the world through the lens of the pandemic and investor-State disputes.
Lin, Ying-Jun and Feng-jen Tsai, ‘Public Health Policy Space for Responding to Potential Pandemics Under the SCM Agreement’ (2022) 17(1) Asian Journal of WTO & International Health Law and Policy 201-238 [pre-print] Abstract: During the COVID-19 pandemic, trade measures are popular to countries to secure and strengthen the health care system’s capacity. Subsidies are one of the trade measures to boost the production of medical products and build up the domestic supply chain. The article explores the legality of a subsidy responding pandemics under the framework of the Agreement on Subsidies and Countervailing Measures (hereinafter ‘SCM Agreement’). The analyses reveal that the uncertainty inherent to pandemic responses does not automatically exempt governments’ financial contributions from the governance of the SCM Agreement. Two solutions are proposed to reserve policy space for public health subsidies. One is to reconsider the relevance of the precautionary principle in interpretation of the SCM Agreement; another is to reflect the balancing policy in the SCM Agreement. A point central to the two solutions is harmonizing the international trade governance and global health governance in response to pandemics. Besides, the article highlights the role of regional governance in managing the emergency supply-demand imbalance caused by public health threats and exploring new subsidy rules.
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.
Magwape, Mbakiso, ‘SACU and Trade Facilitation: A Post-Covid Pandemic Legal Analysis for Improved Efficiency’ (2023) 18(2) Global Trade and Customs Journal 64–73 Abstract: The Southern African Customs Union (SACU) prioritizes trade facilitation as one of its primary objectives in its founding Agreement (Article 2 (a)), implementing programmes to increase trade through expedited movement, and release and clearance of goods in the region. The oldest Customs Union in the world anticipated increased trade-flows following the entry into force and implementation of the progressive World Trade Organization’s Trade Facilitation Agreement (WTO TFA), and operation of the African Continental Free Trade Agreement (AfCFTA). Its aspirations, however, were dampened by the Covid-19 pandemic, which presented supply side challenges and slowed customs processes. Members introduced critical legislative measures to reduce or stop the spread of coronavirus disease (COVID-19) and initiate needed trade-facilitations interventions at a national and regional level. SACU also played a role in this regard, albeit a minimal one, through Council decisions. This raises the question of the SACU’s effectiveness, or ineffectiveness, its relevance in its functions, institutional structural readiness to address pandemics and regional emergencies, and future role it will play in this regard. This article examines trade-facilitation related responses from the institution following the outbreak of the pandemic, and adequacies/inadequacies of the said measures. The article, lastly, proposes trade-facilitation related approaches the SACU could adopt to improve efficiency for future pandemics and other global emergencies.
Marceau, Gabrielle and Shivani Garg, ‘The Role of the WTO in the Global Response to the COVID-19 Pandemic’ (2021) 18(3) International Organizations Law Review 335–369 Abstract: The WTO and international trade have proven more important than ever during the COVID-19 pandemic. Indeed, without the delivery of food, medicines, masks and vaccines through commerce, the pandemic could not be contained. The WTO basic principles - transparency, non-discrimination, the prohibition against border restrictions, disciplines on subsidies to industrial and agriculture products, to name a few, and in particular the WTO monitoring system have helped countries collaborating and coordinating their actions to contain the pandemic and mitigate trade and global supply chain disruptions on essential goods. In addition, during this crisis, the WTO Secretariat and its Director-General assumed enhanced responsibilities to assist Members with their extraordinary needs. The WTO became the global forum for Members’ coordination of border and internal trade-related actions, for the debate on intellectual property and the request for waiving patent protections on vaccines, while playing an active role in stimulating the expansion of vaccine production capacity in developing countries. This article contends that the response of the WTO has augmented and legitimatized its role as a global governance forum.
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.
Mercurio, Bryan and Pratyush Nath Upreti, ‘From Necessity to Flexibility: A Reflection on the Negotiations for a TRIPS Waiver for COVID-19 Vaccines and Treatments’ (2022) World Trade Review (advance article, published online 17 August 2022) Abstract: This article critically examines the proposed waiver of intellectual property (IP) rights for COVID-19 vaccines under the World Trade Organization Agreement’s Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was initiated in October 2020 when the pandemic raged and vaccines were unavailable. However, the landscape has now changed and the waiver may no longer be necessary. The Outcome Document, introduced in the TRIPS Council in May 2022, along with Ministerial Decision of June 2022 recognizes this by focusing on easing the requirements to use TRIPS-flexibilities to accomplish wider and cheaper access. In so doing, the Ministerial Decision reinforces the notion that TRIPS flexibilities can be a useful part of the policy toolkit, even in times of crisis. After providing an overview of the context and outlining justifications for the waiver proposal, the article analyses and identifies key implications and possible effects of the Ministerial Decision. The article concludes that while the Document may not be a perfect solution to the issue of access to vaccines, flexible application of TRIPS-flexibilities is a better resolution in the current environment, especially given the need for further innovation to combat COVID-19 and future pandemics.
Mercurio, Bryan and Pratyush Nath Upreti, ‘The Legality of A TRIPS Waiver for COVID-19 Vaccines Under International Investment Law’ (2022) 71(2) International & Comparative Law Quarterly 323–355 Abstract: This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor–State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and nondiscriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.
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.
Mitchell, Andrew D, Antony Scott Taubman and Theo Samlidis, ‘The Legal Character and Practical Implementation of a TRIPS Waiver for COVID-19 Vaccines’ (2023) Fordham Intellectual Property, Media & Entertainment Law Journal (forthcoming) Abstract: Almost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be open to Members under a COVID-19 waiver in its current or proposed forms, and the practical considerations for implementing them. To guide practical choices in selecting appropriate and adapted responses to public health and other crises, this article also investigates more theoretical questions about the nature of a waiver, its legal character and effect, and its interaction with other international agreements.
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.
Njegovan, Milica and Sonja Bunčić, ‘The Impact of the Covid-19 Pandemic on Foreign Investment Regimes: Law and Policy Making’ (Proceedings, 8th International Scientific Conference ‘Socio-Economic Aspects of the Pandemic: Crisis Management’, 11 June 2022, Sremski Karlovci, 2022) 93–104 Abstract: This paper examines certain aspects of the impact that the COVID-19 pandemic had on the national and international foreign investment protection regimes. Firstly, a brief overview of the trend of foreign direct investments is given, followed by a review of the responses of the countries regarding the reception of foreign investments through screening mechanisms. Furthermore, the impact of the pandemic on international investment agreements as the main sources of international investment law, as well as on investment arbitration, is analyzed. The conclusion of the paper is that the pandemic has affected the national and international foreign investment regimes and that it is likely that the consequences will arise in the future as well. The main observed trends are the tightening of the control of foreign direct investments, the increase in the demand for retaining regulatory space for states in international sources of investment law, as well as the initiation of new investment disputes regarding states’ COVID-19 measures.
Nwafor-Orizu, Mmaobi, ‘Policy Challenges in International Trade Amidst COVID-19 Recovery: The Need for Greater Economic Cooperation and Coordination of States’ Economic Policies’ (SSRN Scholarly Paper No 4123573, 21 February 2022) Abstract: Since the emergence of COVID-19 pandemic, there have been growing concerns about the policy measures that states have continued to adopt in pursuit of a resilient recovery and more importantly, the implications of such policies on the future of international trade. This paper explores some of the international trade policy challenges that have surfaced in states’ COVID-19 strategies. In doing so, this paper will argue that in order to achieve a global economic recovery, there is need for international cooperation and the coordination of states’ economic policies. This recommendation is based on a systematic analysis of the policy measures adopted by states during past economic crises and an evaluation of the applicability of those measures in combating the current COVID-19 pandemic. The WTO has a significant role in this, by ensuring that trade rules are not exploited for strictly protectionist agendas and by guaranteeing that trade restrictive barriers do not impinge on supply chains and production capacities of affordable and essential products.
Nyotah, Priscah, ‘Effect of Covid-19 Containment Measures on the Right to Free Movement Under East African Community Common Market Law’ (2023) 2(1) African Journal of Commercial Law 97–120 Abstract: The right of establishment is provided for under the Protocol on the Estab lishment of the East African Community Common Market (Common Market Protocol). It entitles nationals of an East African Community (EAC) Partner State to move into another Partner State, establish themselves and carry out economic activities. The attainment of the right of establishment is one of the key drivers towards the achievement of the accelerated economic growth and development of the Partner States. Due to the Covid-19 pan demic, the EAC Partner States have invoked protection of public health as a ground to restrict the movement of citizens of other Partner States into their territories. Through content analysis method, this paper analyses the provisions of the Common Market Protocol in facilitating the realisation of the right of establishment in the wake of pandemics such as Covid-19, with a focus on free movement of persons. It finds that there are no parameters on the invocation of threat to public health as a ground for limiting free move ment under the Common Market Protocol. It concludes that this lack of guiding provisions contributes to the violation of the right of establishment.
Octarina, Fatmawati Nynda, Faizin Rahmadi Akbar and Mardika Mardika, ‘International Legal Instruments as the Rule of the Game for the Trade in COVID-19 Vaccine’ (2023) 17(3) Al Qalam: Jurnal Ilmiah Keagamaan dan Kemasyarakatan 1669–1683 Abstract: This article discusses international legal instruments that guide the trade in COVID-19 Vaccine. After efforts to discover and develop COVID-19 Vaccine which in fact are in favor of developed countries and high-tech countries as well as rich countries and high-income countries, and then this condition continues to have an impact on the distribution and trade stages resulting in difficulty in accessing the COVID-19 Vaccine fairly and equitably for developing countries and least-developed countries. Tracking international legal instruments from upstream to downstream have been needed to form a comprehensive mindset and find the right of rule of the game of trade in COVID-19 Vaccine. Finally, it was found that various of international legal instruments in form of international agreement that were closely related to the trade in COVID-19 Vaccine is already available, as well as being able to frame the interest of developing countries and least-developed countries on a reasonable basis, that is the occurrence of a national health emergency due to the COVID-19 disease. The principle of pacta sunt servanda must be used as a basic reason that binding all world countries to obey and comply with the contents of international agreement in accordance with the legal will of the competent authorities through the ratification process of that international agreement.
Oke, Emmanuel Kolawole, ‘The Waiver of the TRIPS Agreement for COVID-19 at the WTO: A Rhetorical Analysis’ (2022) 12 Indian Journal of Intellectual Property Law (forthcoming) < > Abstract: This article presents a rhetorical analysis of the discussions and debates at the WTO’s TRIPS Council regarding the request submitted by India and South Africa for a waiver of certain obligations under the TRIPS Agreement in response to the COVID-19 pandemic. Considering the engagement in ‘rhetorical action’ by both sides of the COVID-19 waiver proposal debate, the article explores whether the discussions, debates, and negotiations at the TRIPS Council regarding the proposed waiver is likely to produce any useful solution. The article is structured into three main sections. Section 1 presents a brief overview of the role of the TRIPS Council in international intellectual property law. Section 2 examines both the waiver proposal by India and South Africa on the one hand and the counter-proposal by the EU on the other hand. Section 3 contains a rhetorical analysis of the discussions and debates surrounding the waiver proposal at the TRIPS Council.
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.
Perehudoff, Katrina, Heba Qazilbash and Kai Figueras de Vries, ‘A Needle in a Haystack? Human Rights Framing at the World Trade Organization for Access to COVID-19 Vaccines’ (2022) 24(2) Health and Human Rights Journal 141–157 Abstract: How and why is implicit and explicit human rights language used by World Trade Organization (WTO) negotiators in debates about intellectual property, know-how, and technology needed to manufacture COVID-19 vaccines, and how do these findings compare with negotiators’ human rights framing in 2001? Sampling 26 WTO members and two groups of members, this study uses document analysis and six key informant interviews with WTO negotiators, a representative of the WTO Secretariat, and a nonstate actor. In WTO debates about COVID-19 medicines, negotiators scarcely used human rights frames (e.g., ‘human rights’ or ‘right to health’). Supporters used both human rights frames and implicit language (e.g., ‘equity,’ ‘affordability,’ and ‘solidarity’) to garner support for the TRIPS waiver proposal, while opponents and WTO members with undetermined positions on the waiver used only implicit language to advocate for alternative proposals. WTO negotiators use human rights frames to appeal to previously agreed language about state obligations; for coherence between their domestic values and policy on one hand, and their global policy positions on the other; and to catalyze public support for the waiver proposal beyond the WTO. This mixed-methods design yields a rich contextual understanding of the modern role of human rights language in trade negotiations relevant for public health.
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?
Polat, Ali Yavuz, ‘Rule of Law, International Trade, and Corporate Financing Decisions in Europe: Evidence From the COVID-19 Pandemic’ in The Transformation of Global Trade in a New World (IGI Global, 2023) 69–85 Abstract: This chapter investigates whether the institutional environment that the firms operate has an impact on their leverage choice. Namely, rule of law is used as an institutional variable. Considering that better implementation of rule of law impacts positively firms’ export performance, total exports in each country are also used as the other main explanatory variable. The findings show that both institutional variables and exports negatively and significantly affect the leverage level. This implies that firms in favorable institutional environment tend to borrow less, which results with lower leverage. Moreover, this study finds that the COVID-19 pandemic period as an unprecedented shock to economies pushed the leverage levels higher. Regarding the implications of the findings, firms’ capacity to access external finance especially during a significant crisis period depends on the institutional environment. Namely, the effective implementation of rule of law should be first priority for the policy makers.
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.
Scheu, Julian et al, Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2022)Contents:
- Part 1: Business and Human Rights Arbitration 39–84
- Part 2: Human Rights in International Investment Agreements 87–178
- Part 3: Specific Conflicts between Investment Law and Human Rights 181–288
- Part 4: African Perspectives on International Investment Law and Human Rights 291–368
- Part 5: International Investment Law and Human Rights in the Era of COVID-19 371–430
Abstract: Pandemic financing has in the current climate of disruption and turmoil of an ongoing global pandemic become the most highly debated and controversial issue within the field of international public health law and policy. From the perspective of international public health law and policy, a precondition for success is that financial resources and funds are employed in an effective manner. Whether the International Bank for Reconstruction and Development (‘World Bank’ or ‘WB’) and the Pandemic Emergency Financing Facility (‘PEF’) – a financing mechanism housed at the WB – may be perceived as effective public health players shall be established by referring to their mandates, their inherent capacity for enhancing accepted global legal standards and rules on public health and their funding methods and practices. After the affirmation and consolidation of its role in the public health sector in the early 1990s, the WB has rapidly accredited itself as the most active intergovernmental institution dealing with pandemic and epidemic financing. Its direct involvement in public health trust funds, such as the Avian Flu Trust Fund Facility and the Health Emergency Preparedness and Response Multi-Donor Fund (the HEPRF), and its lending practices and internal policies and procedures were of crucial significance in this respect. Considering that acceptance of international institutions, including international financial institutions, has always been conditioned by their acknowledgment as legally legitimate, legitimacy is regarded as closely connected to effectiveness. The criteria for establishing legitimacy in relation to international financial institutions are increasingly, amongst others, the respect and promotion of rule of law standards in the recipient states. From this perspective, the WB’s functional and management structures, but not the PEF’s structures and management, have made noteworthy progress, and notwithstanding some deficiencies and peculiarities they present several elements of legitimate decision-making.
Sharmin, Tanjina and Emmanuel Laryea, ‘Australian COVID-19 Measures and Its International Investment Obligations’ (2022) 21(2) Journal of International Trade Law and Policy 182–214 Abstract: This paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to tackle the pandemic. This paper finds that claims based on the protections in the International Investment Agreements (IIAs) signed by Australia are unlikely to succeed and that Australia’s COVID-19 measures can be justified as necessary measures under the general and security exception clauses included in more recent IIAs and under customary international law. Originality/value In the context of the COVID-19 pandemic, scholars have written papers apprehending possible claims by international investors against emergency measures adopted by host countries to face the pandemic which might also have damaged the interest of the foreign investors. The existing literature is too vague and general. To the best of the authors’ knowledge, this is the first paper that draws some specific conclusions in this regard applicable to the COVID-19 regulatory measures taken by Australia. While the existing literature projects the possibility of such investor claims, this paper argues that at least no such claim would succeed against the COVID-19 measures taken by Australia.
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.
Sreenivasulu, NS, ‘COVID-19, Patents and Right to Health’ (2022) 3(5) CIFILE Journal of International Law 31–38 Abstract: The COVID-19 pandemic has created an unprecedented scene and situation across the globe in terms of the health of people at large. Hitherto unknown, unheard and unprecedented health emergency it has created which was never foreseen and anticipated by any wild stretch of the imagination by anyone. It has called for Resolution of the World Health Assembly, which recognizes that the COVID-19 pandemic has an impact on the poor and the most vulnerable, with repercussions on health and development gains, in particular in low-income countries. It further calls on cooperation between multilateral organizations and other stakeholders and the World Health Organization (WHO) to identify and provide options that respect the provisions of relevant international treaties, like the TRIPS Agreement and the flexibilities within TRIPS Agreement for ensuring Public Health. It is indeed required that, as proposed in the Doha declaration, flexibilities within the TRIPS agreement be used in protecting public health at large in the COVID pandemic times. Such flexibilities could include scaling up the development, manufacturing and distribution of medicines, including the vaccines, injunctions, capsules and tablets used in treating the COVID at present. It is also required that capacities be built for transparent, equitable and timely access to quality, safe, affordable and efficacious diagnostics, therapeutics, medicines, and vaccines for the treatment of COVID. It can be ensured only by using the flexibilities under international agreements like TRIPS while promoting the innovation in pharma for finding better solutions for COVID.
Stevens, Philip and Nilanjan Banik, ‘Abolishing Pharmaceutical and Vaccine Tariffs to Promote Access’ (SSRN Scholarly Paper ID 4070499, 30 July 2020) Abstract: This research note attempts to identify major trends in pharmaceutical tariffs since the early 2000s, in particular average tariff rates and the scale of individual product coverage by tariffs. It concludes by calling for international action to legally oblige governments to reduce tariffs on medicines and vaccines.Pharmaceutical tariffs have been declining over the last twenty years, falling from a global average of 4.9% in 2001 to 3.4% in 2018 (latest available data). Nevertheless, jurisdictions and customs territories continue to apply tariffs of up to 20% on pharmaceuticals and 10% on vaccines (although increasing numbers of governments apply no tariffs at all). Reductions in tariffs rates are being undermined by a trend for governments to increase the categories of imported medicines subject to tariffs, potentially to recoup revenue lost from lowering headline tariff rates. The COVID-19 crisis reemphasises the need to reduce inflationary trade barriers to increase access to medicines and vaccines. Expanding and updating the WTO Pharmaceutical Agreement would be a powerful avenue to achieve this.
Su, Xueji and Alexandr Svetlicinii, ‘From Norms to Expectations: Balancing Trade and Security Interests in the Post-COVID-19 World’ (2021) 18(2) Manchester Journal of International Economic Law 162–191 Abstract: Often depicted as a ‘nuclear button’, the significance of the security exceptions to the world trade legal regime goes well beyond an exception that exempts states from legal commitments to trade liberalisation. As a general exception enshrined into the GATT/WTO regime, the national security exceptions are a reflection of historical negotiations which eventually led to a compromise and consensual expectation among WTO members. This consensus entails a two-pronged attribute of this provision. On the one hand, the possibility and the scope of review of the security exceptions was intentionally made ambiguous. On the other hand, there lies an implied expectation among the state actors as to its applicability. The existing literature in the field of international trade law focuses predominantly on the former attribute of the issue. This paper turns to the latter. Our analysis explores three imperative questions. First, this paper attempts to understand the ‘circumstances’ in which the national security exceptions are likely to be invoked. Second, this paper looks into whether the aforementioned expectations have changed over time. Lastly, the paper analyses how the rules of the international trade regime should interact with the common expectations. In view of the above questions, this paper argues that the security exceptions rule was invoked in the most severe cases of interstate confrontation, closely related to wars, armed conflicts and similar situations endangering the territory, population and political system of a state. This reflects a common expectation among states that the national security exceptions rule is to be employed for the protection of essential security interests. After an examination of recent trade disputes between China and the United States and between Russia and the United States/European Union over Ukraine, we conclude that so far this common expectation persists. On this ground, we argue that the WTO panels should be mindful of any arbitrary extension of the use of the national security exception and the delimitation between security and other national interests.
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.
Taubman, Antony Scott, ‘Solidarity as a Practical Craft: Cohesion and Cooperation in Leveraging Access to Medical Technologies within and Beyond the Trips Agreement’ (2022) 29(2) Asia-Pacific Sustainable Development Journal (forthcoming) Abstract: The COVID-19 pandemic has precipitated an unprecedented call for global solidarity that included a proposal to waive key obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. The governance of intellectual property in a global health crisis entails consideration of the effective and coordinated agency of domestic governments to foster solidarity through practical action. This paper lays out the context for solidarity and considers its practical operation by focusing on the mechanism of interaction between the intellectual property system and access to medicines, historically and during the pandemic: authorization of the use of patented subject matter without right holders’ consent.
Thambisetty, Siva et al, ‘The COVID-19 TRIPS Waiver Process in Critical Review: An Appraisal of the WTO DG Text (IP/C/W/688) and Recommendations for Minimum Modifications’ (SSRN Scholarly Paper ID 4124497, 31 May 2022) Abstract: The original TRIPS waiver proposal made by India and South Africa in October 2020 was based on the need for affordable access to medical products for the prevention, containment of treatment of COVID-19 during the pandemic. That proposal sought to bring into force a waiver of WTO States’ TRIPS obligations with regard to patents, copyrights, industrial designs and undisclosed information as they relate to COVID-19 health technologies. In May 2021, we set out the legal and political case for this principles-based TRIPS waiver. Subsequent negotiations over the waiver have been difficult and protracted. Only in May 2022 did an apparent ‘compromise’ text emerge from the WTO Director General (DG), but without the explicit support of the waiver’s main proponents, India and South Africa, leading to concern over the scope and effectiveness of the DG text. In this paper we provide a short commentary that critiques the WTO DG text’s deficiencies and spells out the minimum modifications necessary for a meaningful workable text for use in the COVID-19 emergency context.
Thampapillai, Dilan and Sam Wall, ‘Does International Law Need a Conscience? Evaluating the India–South Africa Proposal to Suspend TRIPS Obligations and the COVID-19 Vaccines’ (2021) 39(1) The Australian Year Book of International Law Online 141–152 Abstract: There is undoubtedly a consensus within the international community that ‘vaccine nationalism’ is an undesirable state of affairs. However, states are self-interested actors and in the absence of constraints imposed by international economic law this pursuit of rational self-interest is likely to result in an outcome that is unjust on a global scale. The recent proposal by India and South Africa to suspend TRIPS obligations for the duration of the COVID-19 pandemic has been rejected within the WTO. This proposal constitutes a recognition of the inadequacies surrounding the TRIPS compulsory licensing scheme. Yet, the immersion of intellectual property law within international investment law together with the proliferation of free trade agreements containing TRIPS-plus obligations would likely have made such a proposal unworkable. We argue that the fundamental problem is that the TRIPS Agreement lacks a defined concept of conscience that governs both its operation and interpretation. Such a principle exists in the common law within the field of private law. The principle, in its various doctrinal iterations, navigates the tensions between different parties while serving an underlying purpose of justice within the common law. It has much to offer international intellectual property law.
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.
Villarreal, Pedro A and Giorgia Renne, ‘Medical Countermeasures for Pandemic Response and Intellectual Property Rights: Articulating and Enabling Community Interests under International Law’ (2022) 24(3) International Community Law Review 233–256 Abstract: The current article addresses the question of whether and under which circumstances access to medical countermeasures against pandemics, such as COVID-19, may constitute a community interest under international law. First, the intertwined concepts of global public goods and community interests are fleshed out. Second, the analysis expounds whether the protection against pandemics, including immunization, can be framed as a community interest, and which obligations would result. Third, the relationship between community interests and intellectual property rights as enshrined in international law is explored. Fourth, the conclusions try to reconcile the goals of international intellectual property rights and the protection against pandemics. Positive obligations to furnish medical countermeasures may not attain the consent of a sufficiently large number of states. Nevertheless, articulating the protection against pandemics as a community interest should entail obligations to refrain from resorting to international intellectual property law to impede developing patent-protected medical countermeasures in other countries.
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.
Widiatedja, Ngurah, ‘Export Restrictions on COVID-19 Vaccines: What Developing Countries Can Do Under the WTO Law?’ (2022) 19(2) Indonesian Journal of International Law 263–288 Abstract: The COVID-19 pandemic has wreaked havoc on the global economy and trade, since production and consumption have been reduced around the world. The production and distribution of COVID-19 Vaccines caused unequal distribution as some developed countries have imposed export restrictions. As a result, wealthier countries are resuming normalcy, while the rest of the world continues to struggle to vaccinate its citizens. Article XI(2)(a) of The General Agreement on Tariffs and Trade exceptions allow members the legal ability to impose export restrictions if they meet specific criteria: they must be temporary, confined to foodstuffs and vital products, and enforced in the context of preventing and easing critical shortages. Export restrictions on COVID-19 vaccine applied by developed countries appear to meet these criteria, given that all of these countries are facing a shortage, and the restrictions are being placed to alleviate the shortage. Responding to this unpleasant measure, this article finds that developing countries may employ two available alternative measures, namely compulsory licensing and security exceptions under the Agreement on Trade-Related Aspects of Intellectual Property Rights to protest unequal distribution of the vaccine around the world.
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.
Wu, Xiaoping and Bassam Khazin, ‘Patent-Related Actions Taken in WTO Members in Response to the COVID-19 Pandemic’ (World Trade Organization, Economic Research and Statistics Division, Staff Working Paper ERSD-2020-12, 1 October 2020) Abstract: This working paper provides an overview of the patent landscape of medical treatments and technologies related to COVID-19, and of the patent status of two investigational medical treatments: remdesivir and lopinavir/ritonavir. It then presents various patent-related actions taken by legislators, policymakers, industry sectors, and civil society organizations in WTO Members since the outbreak. Furthermore, it elaborates on patent-related policy options provided by the TRIPS Agreement, and WTO Members’ national implementation and utilization of these options in their response to the COVID-19 pandemic.
Yu, Peter K, ‘Deferring Intellectual Property Rights in Pandemic Times’ (2023) 74(2) Hastings Law Journal 489–550 Abstract: This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than thirty provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal’s strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations. To respond to these challenges and the negotiation impasse at the WTO, this Article advances an alternative proposal that calls for the deferral of select intellectual property rights in pandemic times. Aiming to ‘split the difference’ between the proponents and opponents of the waiver, the proposal draws support from precedents involving temporal adjustments to intellectual property rights at both the international and domestic levels. The Article concludes by exploring the proposal’s scope, strengths, and limitations.
Yüksel Ripley, Burcu and Ülkü Halatçı Ulusoy, ‘COVID-19 Related Export Bans and Restrictions Under WTO Law and the Determination of Their Legal Effects on International Sale of Goods Contracts Between Parties Located in WTO Member States: Interplay Between Public and Private International Law’ in Poomintr Sooksripaisarnkit and Dharmita Prasad (eds), Blurry Boundaries of Public and Private International Law: Towards Convergence or Divergent Still? (Springer, 2022) 157–177 Abstract: The COVID-19 pandemic has led to an unprecedented global health crisis. States, in an attempt to control the spread of COVID-19, have imposed drastic measures, including export bans and restrictions on medical products. The measures have affected the performance of international sale of goods contracts concerning medical products subject to the measures. The determination of the legal effects of the measures on international sale of goods contracts raises public and private international law questions. It also reveals an interplay between WTO law and private international law, which are traditionally seen as separate areas of law. The chapter analyses this interplay in the context of international sale of goods contracts concerning medical products and between parties located in WTO Member States. The chapter first considers COVID-19 related export bans and restrictions under WTO law and examines whether and to what extent they are consistent with WTO law. The chapter then focuses on the determination of the legal effects of these measures on international sale of goods contracts under private international law and examines how WTO law considerations can be relevant to this determination.
Zaman, Khorsed, ‘The Waiver of Certain Intellectual Property Rights Provisions of the TRIPS for the Prevention, Containment and Treatment of COVID-19: A Review of the Proposal under WTO Jurisprudence’ (2022) 13(2) European Journal of Risk Regulation 295–310 Abstract: This article is a critical legal analysis of the proposed TRIPS waiver under World Trade Organization (WTO) law. It reviews the existing TRIPS flexibilities and the ‘August 2003 TRIPS waiver’, highlighting the obstacles to achieving the goals of these legal instruments. It demonstrates that numerous critical TRIPS flexibilities, notably TRIPS Article 31bis, are ineffective, prompting some countries to submit a new waiver proposal to the WTO. It highlights several WTO rules that are also quite ambiguous. This paper argues that a WTO clarification might be an alternative to the new TRIPS waiver proposal if it is ultimately rejected due to a lack of consensus among WTO members. Finally, this article emphasises the importance of adopting a balanced approach that may simplify complicated TRIPS rules, decrease the risk of trade-based retaliation and improve collaboration in knowledge transfer and scaling up the manufacture of and access to lifesaving vaccines, pharmaceuticals and healthcare equipment.
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.
Zupruk, Brian, ‘The Debate on Protecting Intellectual Property Rights for COVID-19 Vaccines & Therapeutics’ (SSRN Scholarly Paper No 4261152, 1 May 2022) Abstract: COVID-19 is proving a durable obstacle to global public health and to the world’s economies. And while the battle against COVID has largely been waged in laboratories and clean rooms of pharmaceutical giants seated in the world’s largest economies, the populations most in need do not have anywhere near proportional access to the fruits of those laboratory victories. The cutting-edge vaccines and therapeutics that are permanently changing the public health landscape are carefully guarded intellectual property in which major states, multilateral organizations, and the global pharmaceutical industry all have interest and stakes. Since Fall 2020, an outspoken movement has emerged that seeks a waiver of international intellectual property rights for COVID-19 vaccines and therapeutics through the World Trade Organization’s TRIPS Council, the governing body for transnational IP issues. Because TRIPS typically operates through unanimity, the waiver movement—launched by India and South Africa but now championed by the United States—faces a substantial hurdle: strenuous opposition from trade groups and some E.U. member states (most critically Germany.)This Note examines the IP landscape for COVID-19 intellectual property vis-à-vis the TRIPS Agreement; surveys the major policy and legal arguments on both sides of the TRIPS waiver debate; and looks at major precedent for one non-TRIPS solution to the IP waiver debate: public-private partnerships. The Note concludes that while it is possible to reach a workable solution through TRIPS, the WTO process has proven a poor fit for pandemic crises because of the baked-in consensus requirement and the generally ponderous pace of diplomacy. Instead, the Note posits that in the short-term, events on the ground may have overtaken the diplomatic process; and long-term, the goal should not be free-flowing pharmaceutical IP but investment in distributed vaccine production capacity and new supply chain development across the Global South.
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.
Arlota, Carolina, ‘The Impact of the COVID-19 Pandemic on Foreign Investment and Investment Arbitration: From Energy Transition Disrupted to the Path Forward to a Greener Future’ (2022) 15(5) The Journal of World Energy Law & Business 382–395 Abstract: Foreign investment in the energy sector is complex during the best of times. The challenges posed by the COVID-19 pandemic (and its intertwined economic crises) increased competition for foreign investment and strengthened the perennial quest for climate justice. The pandemic added complexity to both domestic and international spheres of governance, which led to calls for a suspension or even a cancellation of arbitration claims involving foreign investments. As developing and developed countries compete for financial resources to transition to a carbon-neutral society, such a suspension or cancellation is of academic and practical interest. Accordingly, this article discusses the impact of the pandemic on foreign investment in the energy sector, focusing on investment claims. It assesses competing views involving the proposed revisions (namely, suspensions and cancellations) and their consequences based on a law and economics perspective. This article also examines how foreign investments that align with the United Nations Sustainable Development Goals may foster the transition to a greener future. Ultimately, this article offers relevant insights that are likely to be applicable to critical future disruptions, whether they occur due to global economic crises or climate-related emergencies.
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.
Bello, Temitayo and Tolulope Adeosun, ‘Arbital Proceedings Configuration and COVID-19 Pandemic; Evaluation of Success and Shortcomings: Europe, USA and Canada’ (SSRN Scholarly Paper, 15 June 2022) Abstract: Arbitration serves as a dispute resolution mechanism for commercial disputes. The COVID-19 pandemic seriously affected the arbitration proceedings thereby making the proceedings to be done virtually. The work is based on the relative arrangement of the arbitral proceedings and COVID-10 pandemic evaluation of the success and shortcomings using USA, Europe and Canada as case study. This article reflects on the shortcomings and successes of arbitral proceedings during and post-COVID. The article discovers that without remote and virtual proceedings, arbitration would have been wrecked by the COVID-19 pandemic if not for the usage of modern technology. Virtual proceedings were successful globally with usage of various applications of software which navigates the proceedings and brings parties togetherIt concludes that various arbitration institutions in many jurisdictions adopted very fast and efficient methods of resolving arbitration proceedings virtually. The effect of COVID-19 had led to a quicker and more efficient way of resolving arbitration, although with some shortcomings. It therefore recommends that usage of technology via virtual process and proceedings should be more solidified.
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.
Dautaj, Ylli and Bruno Gustafsson, ‘Covid-19 and Arbitral Practice: Lessons Learned and Challenges Ahead’ (2021) 54(4) Creighton Law Review 473–496 Abstract: The arbitration community and its consumers have been forced to discuss the need for and use of remote hearings in light of COVID-19’s detrimental effect. Thus, the ‘ordinary’ arbitral procedure has been forced to utilize the bedrock principle of flexibility in order to accommodate new realities. While doing so, the major obstacle has been to accommodate for remote hearings without undercutting ‘due process.’ This has raised several important questions. In this paper we focus on the highly debated topic of whether ‘a right to a physical hearing [does] exist in international arbitration’? Put simply, does a party have the right to a physical hearing, or does the arbitral tribunal have the power to decide to conduct a remote hearing?
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 34–37Jurisdiction: 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.
Krzizok, Bianca Maria, ‘COVID-19 in Investment Arbitration: A Legal Answer’ [2021] (92) Prudentia Iuris 65–96 Abstract: During today’s situation of COVID-19, States take emergency measures which will be subject to investment arbitration claims sooner or later. The aim of this paper is to provide a possible solution to such cases where the State’s and the investor’s interests compete with each other. By analysing cases from the 21th century and ap- plying my findings to hypothetical COVID-19 cases, a general answer on how to solve COVID-19 related investment disputes shall be given.
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.
Levashova, Yulia and Pascale Accaoui Lorfing, Balancing the Protection of Foreign Investors and States Responses in the Post-Pandemic World (Kluwer Law International, 2022) Link to book page on publisher website
Book summary: This book is an expansive synopsis of the impact of COVID-19 on States and investors, including perspectives from UNCTAD, the European Union, the United States, Russia, India, South Korea and the African Union. This exhaustive guide on State defences and investor protection mechanisms grapples with the following aspects of the debate as affected by the pandemic: treatment of investors in times of pandemic and in the post-pandemic world; sufficient contribution to the economic development of the host State; disparities in bargaining power; and use of ‘pandemic power’ to accord preferential treatment. The concluding part of the book is devoted to analysing case studies from around the world through the lens of the pandemic and investor-State disputes.
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.
McLaughlin, Mark, ‘COVID-19 Measures and Investor-State Disputes: Have the Stars Aligned for Mediation?’ (SSRN Scholarly Paper No 4333667, 5 January 2023) Abstract: Using evidence from the Singapore International Dispute Resolution Academy’s International Dispute Resolution Survey (‘SIDRA IDR Survey’), this chapter argues that the twin forces of COVID-19 and the SCM have created hospitable conditions for the growth of investor-state mediation. The SIDRA IDR Survey focuses on the experiences of legal users and client users of cross-border dispute resolution mechanisms between 2016 and 2018. Users of investor-state dispute settlement were asked to select the mechanisms of dispute resolution that they have been involved in, rank the factors that influenced their choice of mechanism, and evaluate the usefulness of methods to improve the dispute resolution process for investor-state disputes. Their responses can inform the prospects for arbitration and mediation in the context of COVID-19.
‘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-19’ Journal 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’.
Scheu, Julian et al, Investment Protection, Human Rights, and International Arbitration in Extraordinary Times (Nomos, 2022)Contents:
- Part 1: Business and Human Rights Arbitration 39–84
- Part 2: Human Rights in International Investment Agreements 87–178
- Part 3: Specific Conflicts between Investment Law and Human Rights 181–288
- Part 4: African Perspectives on International Investment Law and Human Rights 291–368
- Part 5: International Investment Law and Human Rights in the Era of COVID-19 371–430
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.
Teo, Samuel and Samuel Wittberger, ‘Awards Rendered in Remote Hearings in International Arbitration: To Set Aside or Not to Set Aside?’ [2021] Singapore Comparative Law Review 219–233 Abstract: The sudden onset of the COVID-19 pandemic has fundamentally changed the way arbitration proceedings are conducted. National lockdowns and travel restrictions have necessitated a shift to remote hearings, the alternative being the prospect of lengthy delays. Despite familiarity with remote means such as teleconferencing for case management conferences and other pre-hearing proceedings, the conduct of merits hearings in a fully remote manner was significantly less common prior to the advent of COVID-19. This has thus raised concerns as to whether a tribunal’s decision to conduct hearings remotely opens the door to setting aside proceedings. For the purposes of this article, remote hearings will be defined as "hearings that are conducted using communication technology to simultaneously connect participants from two or more locations".’ Whilst numerous arbitral institutions have issued various practice notes and revised their institutional rules to provide frameworks for remote hearings, national arbitration legislation has mostly been silent on the matter.4 As a result, in the short span of a year, decisions to hold arbitration hearings remotely have already been challenged before national courts.5 The authors opine that it is only a matter of time before such challenges arrive on Singaporean and English shores. Thus, this article focuses on whether setting aside regimes for international arbitration in both Singapore and England and Wales would provide for an award to be vacated on the basis of the conduct of a remote hearing.
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) < https://papers.ssrn.com/abstract=3640111 > 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.
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