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Struggling International Law in times of a Global Pandemic

M K Sanu
20 April 2020 12:41 PM GMT
Struggling International Law in times of a Global Pandemic
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Three instances sum up the state of international law in the face of Covid-19 outbreak. Firstly, the failure of multilateral forums in preventing the spread of the disease from country to country speaks volume. This is despite the existence of a much touted rules of international law "to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade". On the second place the US, the major contributor to the WHO budget (estimated as fifteen percent of total budget and voluntary funding) has announced its decision to suspend the funding because the approach of the Organization has been 'China-centric' from the beginning. This has put the UN specialized agency in charge of global public health in a spot of bother risking its ability to fight the novel corona virus in particular. Thirdly, the UN Security Council has failed to discuss or adopt a resolution on the issue since China blocked the move by articulating that it is not a threat to international peace and security. Later on a pacifying note, António Guterres the UN Secretary General had a closed video conference meeting with the Security Council Members and exhorted for international cooperation to defeat the crisis, the "gravest test since the founding of this Organization", He threw light on various issues ranging from the potential of the infectious disease to be used as a biological weapon, the need to put a full stop to international armed conflicts during this crisis to rising unemployment and economic downturn, but declined to view the outbreak as a threat to international peace and security on its own. This may be due to the narrow conception that lack of physical violence and material destruction has nothing to do with international peace and security. A Principal organ of UN with the primary responsibility to deal with threats to international peace and security should view a global pandemic affecting lives and health of people so badly, as such a real threat.

Now a question naturally arises. Whether the failure and crisis of a specialized agency and reluctance of the principal organ of the UN are to be painted as a struggle for international law? For understanding that, loopholes in the normative framework addressing infectious diseases having an international concern has to be scrutinized. Deterrence cannot be the moving force behind successful materialization of international obligations especially when mighty nations are involved. Even binding decisions of the International court of Justice are impotent in such a context. Real life of international law can be traced to 'soft law' which inculcates a culture of right behavioral pattern in nations and of course the binding obligations. Countries and populations learn international law through education by soft law. Not being frustrated by the tangible failures of international law as an institution, multilateralism should not hesitate to produce more and more soft law. Next part will enquire the inadequacies in international legal framework that contributed to the present crisis and the possible soft and binding obligations that ought to better the situation.

International Health Regulations (IHA)

Scholars evaluate IHA, 2005, a product of a decade long negotiations, as a path breaking and comprehensive legal instrument that govern the outbreak of potential and actual global infectious diseases. IHA covers both existing and unforeseen and communicable and non-communicable diseases. Diseases of any kind, naturally occurring, accidental and intentional are the subject matters of the Regulations. The treaty is considered as a well balanced one synthesizing the concerns of other bodies of international law such as trade and human rights law. Next part will examine some inadequacies of the IHA that allowed the global spreading of COVID and making the situation more complex.

Obligation to Notify –Whether depends on State Party's Subjective Satisfaction?

Article 6 demands that "each State Party shall assess events occurring within its territory by using the decision instrument in Annex 2. Each State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory in accordance with the decision instrument, as well as any health measure implemented in response to those events…(italics supplied). Annex two elaborates and guides Parties to make the assessment in situations like the present one, if a State Party answers ''yes'' to any two of the following questions, the event is deemed one that may constitute a public health emergency of international concern and must be reported to the WHO: (1) Is the public health impact of the event serious? (2) Is the event unusual or unexpected? (3) Is there a significant risk of international spread? And (4) Is there a significant risk of international travel or trade restrictions?. The answer regarding seriousness of the disease and significant risk of international spread depend on the subjective satisfaction of a Party. If the assessment leads to an answer of 'no', however flawed it may be, there is no obligation to report. In the Covid-19 instance, the first case according to some media was reported in China in November –December 2019. WHO says that China reported a cluster of cases of pneumonia in Wuhan, Hubei Province on 31st December and a novel coronavirus was eventually identified. Wuhan is major business city having high international connection with intense international traffic. Only on January 22, 2020 WHO issued a statement that there was evidence for human to human transmission. The outbreak was declared a Public Health Emergency of International Concern only on 30 January 2020. In a matter of two or three months thousands from Wuhan would have been travelled to different parts of the world. It is clear that China had been lax in reporting the matter to WHO and WHO was late to declare it a Global pandemic. Even other nations were late to react even after the reporting of initial cases. Thus countries like Italy, Spain, UK and the US found themselves in the present condition. The IHA should be re-written to make the obligation to notify mandatory immediately after examining the cluster of cases suspecting epidemic nature without waiting for answering any questions. The obligation should be more stringent if the location is a destination of international travelers. After reporting the cases, the WHO along with the State Party can conclude whether the outbreak is a threat of international concern.

IHA Lacks in Maintaining Transparency Obligations

IHA expects transparency from the part of Parties while communicating with the WHO, though there is no specific provision in this regard. According to article 9, WHO may take into account reports from sources other than notifications or consultations and shall assess these reports. But a verification and communication of relevant additional information from the Party where the epidemic is reported is needed within 24 hours of the WHO intimation. Once verified, the matter shall be communicated to other State Parties. Here other sources mean communications from civil society or non-state actors. If we examine the COVID-19 instance, it is too much to expect information from other sources from a authoritarian country like China. China had covered up the matter for some critical weeks which caused the virus to spread across the world. WHO could have depended on media reports (though lacking in epidemiological details) for making an enquiry with China to ascertain whether there was a cluster of pneumonia cases and triggered the notification process. There were also reports of a doctor who smelt a SARS like disease in Wuhan and posted this in his whatsapp group was threatened and forced to tender an apology by the authorities. Origin of the virus is still a disputed fact. While China traces it to a wet market in Wuhan, western media suspects that the virus accidentally escaped from Wuhan Virology Institute. Conspiracy theories of biological weapon are also doing the rounds. Again under international pressure, recently China rectified the error in the number of patients and causalities to double. China justified it as a statistical error, information from informal sources say that China had many things to hide. From what is available from the media including social media, transparency has been the major causality. China will gradually learn that democracy is an essential prerequisite of transparency and a necessity to play out the role of a global leader. There needs to be a provision in the Regulations requiring transparency and freedom of civil society and media to function effectively in the territory of a Party.

Precautionary Approach Must Guide the Decision Making under IHA

Last two or three decades have been witnessing the discourse regarding the status of precautionary principle or approach in international law. While seeing debates like whether precautionary approach is a rule of customary international law or not, its absence in the IHA is intriguing. The approach is the backbone of international environmental law and a relative new entrant into public health law. Public health law refuses to see diseases individualistically but aims to prevent diseases through a community approach. But there is difference between prevention and precaution. The approach in the new context may be stated thus: "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent damages human life and health". Infectious diseases will surely cause serious or irreversible damage in the form of physical hardships or loss of lives. In the case of new epidemics like COVID-19, the novel virus is only months old and there is clear scientific uncertainty. A risk assessment would reveal social distancing, isolation or a complete lockdown as cost-effective measures. The challenge will be to operationalize the approach in the context of IHA. Advantages will be early assessment and notification and swift information sharing by the WHO. Temporary recommendations of the WHO may include health measures to be implemented by the State Party experiencing the public health emergency of international concern, or by other States Parties, regarding persons, baggage, cargo, containers, conveyances, goods and/or postal parcels to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic (article 15 para 2) Countries can accept or choose or reject these recommendations depending on the precautionary attitude. Those who are averse to risk taking may opt to reduce the spread of disease and those who prefer to err on the side of safety may take preventive actions like lockdown and cancellation of international traffic. In fact 'avoid unnecessary interference with international traffic' amounts to appeasement of WTO law which has a bigger clout. But precautionary approach is reflected in the WTO SPS agreement according to the Appellate Body decision in EC-Beef Hormones case. On a plain reading, provisional measures under SPS agreement and precautionary approach have several elements in common and precautionary measures like isolation, social distancing and lockdown would be perfectly trade law friendly. IHA necessarily needs precautionary approach as its central theme.

Human Rights, Data Sharing, Research and Privacy Concerns

IHA demands respecting the dignity and human rights of individual while implementing temporary measures. This includes no excessive intrusion into privacy. Tracking and isolating of international travelers and contract tracing definitely infringe right to privacy. China's technologically innovative measures as reported in the media during COVID period had virtually left no space for privacy discussions. Data protection is an area of concern that IHA does not specifically deal with. The Guardian reported that technology firms are involved in processing large volumes of confidential data of UK patients as a part of government's response against COVID. This could be the situation in almost every part of the world because processing of big data would be helpful in doing research and deciding treatment protocols. Private possession of data on the other hand stifles research and development. There needs to be network of public portals under the leadership of the WHO so that anonymised health related data could be stored and processed. This data should be a global common property resource which can be assessed by any institution intending to do research. Unmanageable number of patients and insufficient facilities during COVID throws up new human right issues like discriminatory practices. Reports of elderly people being discriminated against younger ones for treatment and life supporting systems generate ethical and moral questions. Similar is the case migrants discriminated against citizens. Access to medicine (despite the amendment of TRIPS allowing compulsory licensing for the purpose of exportation also and options for parallel imports) is another area of concern that disturbs both the developed and developing world. A host of novel issues are burdening the IHA framework which were unforeseen when the treaty was negotiated. Standards have to be evolved under IHA with the support of other international law bodies to meet these challenges.

Infodemic as a New Challenge

WHO Director-General Tedros Adhanom Ghebreyesus' famous words "we are not just fighting an epidemic: we are fighting an infodemic" amply describes the rapid spreading of misinformation through social media platforms and other outlets. Three kinds of misinformation rule the roost during COVID period; 1) unverified scientific information-Even heads of nations are influenced by this in their frantic search for magic pills like hydroxychloroquine. Untested hypothesis such as heat and humidity destroys novel corona virus, consuming alcohol and certain food increases resistance capacity etc are circulated as verified scientific truths. These can mislead and make people adventurous. Still these can be tested and verified or rejected at a later time; 2) superstitions sold as truths-For example the information that cow dung and urine can increase resistance to the virus or 5G is responsible for the spreading of the virus;3) propaganda information that promotes vices like racism and communalism accusing certain groups as responsible for the virus. The day after COVID was declared as a public health emergency of international concern, WHO's risk communication team launched a new information platform called WHO Information Network for Epidemics (EPI-WIN), "with the aim of using a series of amplifiers to share tailored information with specific target groups". WHO is in touch with UNICEF which has expertise in risk communication and social media platforms which can direct searches on COVID to reliable sources and remove objectionable materials like the propaganda information. But WHO alone cannot manage infodemic. IHA State Parties may be asked to include in their national public health laws, a provision criminalizing the production and circulation of fake information relating to an epidemic.

Multilateralism and Solidarity are the only Medicines

Coming back to the three instances mentioned in the introductory part, all of them extend at least a temporary challenge to international law. These are interconnected too. Subjective satisfaction element in the decision to notify an epidemic of international concern gives Countries an opportunity to cover up and delay the notification process and information sharing. Lack of transparency obligations in the IHA is going to affect the effectiveness of the regulation in preventing a global spread of epidemic. Absence of precautionary approach and recommendatory nature of WHO suggested measures may result in less effective measures of prevention by putting economy over human lives. IHA has to take into account new human rights issues and the menace of infodemic. These kinds of inadequacies are also responsible the monstrous effects of COVID. Toying with the carefully negotiated rights and obligations is almost impossible in international law. On the alternative, Parties may be encouraged to adopt IHA plus standards. This soft law approach will bring the desired results gradually. WHO is the most underfunded arm of the UN considering the gravity of its mandate. Withdrawal of its major contributor from funding puts the specialized agency in doldrums. Its ability to fight the global pandemic and obligation to strengthen public health systems in lesser developed countries is considerably weakened at least for now. The WHO Director- General has been trying to flatter two super powers through diplomacy, but earned the wrath of one of them. In fact, WHO has been a scapegoat in the struggle between an adamant China and inconsistent US. In a globalised multi-polar world there could be more superpowers and hence more failures for international law. Here was the importance of a UN Security Council Resolution. It could have held international law together and provided a leadership in response to COVID. But international law tends to recover from setbacks as history shows. If a principal organ with primary responsibility frustrates international community with its inadequate response, there always exists a secondary responsibility. UN General Assembly stepped in and adopted a resolution titled 'Global solidarity to fight the coronavirus disease 2019 (COVID-19)' calling for "intensified international cooperation to contain, mitigate and defeat the pandemic, including by exchanging information, scientific knowledge and best practices and by applying the relevant guidelines recommended by the World Health Organization."It also emphasised the need for "full respect for human rights, and stresses that there is no place for any form of discrimination, racism and xenophobia in the response to the pandemic." The resolution tries to fill the lacuna left by Security Council by reaffirming "its commitment to international cooperation and multilateralism and its strong support for the central role of the United Nations system in the global response to the coronavirus disease 2019 (COVID-19) pandemic". The resolution imparts valuable insights regarding the role of international co-operation and solidarity among nations, international institutions and different bodies of international law. Solution for threats to globalization and international law lies in accentuated multilateralism and not in isolationist rhetorics.

Author is a Kerala based Researcher. 

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