Assistant Professor of International Law at Allameh Tabataba’i University
Master Student of International Law at Allameh Tabataba’i University
The unfortunate outbreak of COVID-19 has naturally resulted in much news and debate in the international arena, especially with respect to personal health measures. Such outbreaks of various diseases which turn into epidemics, and subsequently into pandemics, is not a new phenomenon, and hence, it is logical that international law is seized of such an issue. With a view to the existing international legal regime, in this post we will attempt to discuss three points regarding global epidemics; first, the World Health Organization (WHO) regulations; second, the relevant human rights framework; and third, the potential link between such disaster and international peace and security. Obviously, the discussion below can be applied to the general question of how international law responds to the global spread of communicable diseases but, nevertheless, it is also specifically relevant to the current state of affairs in relation to COVID-19.
Starting with the WHO framework, since its establishment in 1948, WHO is the primary custodian of international health issues and international health measures. The majority of WHO’s activities are primarily based on its Constitution, also adopted in the same year that it was established. In 2005, the World Health Assembly of the WHO adopted the second edition of an international instrument known as the International Health Regulations (IHR), which entered into force on 15 June 2007. The 2005 IHR echoed the ۱۹۶۹ Regulations, with some differences between the two instruments, discussed below. As epidemics have been persistently present throughout the WHO’s lifetime, it is asserted that the Organization has been aware of and attentive to similar problems from the past, and has moved to adopt measures to tackle such outbreaks.
By comparing the 1969 IHR with the 2005 regulations, one witnesses that two main differences exist (see also here). First, while the 1969 IHR were exclusively focused on specific communicable diseases, namely, Cholera, Plague, and Yellow Fever, the 2005 edition of the IHR defines disease as ‘[…] an illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans’. Based on this wide definition, article 2 of the IHR 2005 presents the purpose and scope of the document: ‘[…] 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 (emphasis added)’. Second, the international obligations of States in the 2005 regulations have expanded significantly in comparison to its predecessor. As the 2005 IHR is not limited to any specific disease, it is meant to have a long-lasting impact and regulatory effect on international efforts attempting to tackle epidemics.
The legal basis for such regulations enshrined in Articles 21(a) and 22 of the WHO Constitution, which gives authority to the Health Assembly to commence and execute something akin to lawmaking processes (adopt regulations) with respect to the Organization’s duties; regulations which need not be ratified domestically by the Member States, and resemble international treaties, due to the fact that they create legally binding obligations. Just like international treaties, Member States may, with due consideration for the time-period defined by the World Health Assembly, reject such regulations or subject their adherence to reservations.
To elaborate further on IHR 2005, there are two sets of obligations prescribed therein: obligations for Member States, and obligations for the Organization itself. When it comes to the Member States’ obligations, once more this set of obligations is divided among, first, the States struck by an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a public health emergency of international concern, and second, other Member States. To be brief, the main undertaking on behalf of “other Member States” in such circumstances is an obligation to cooperate with WHO (art 13(5)). On the other hand, a Member State which is dealing with a public health emergency of international concern has a threefold obligation under the IHR 2005, one of which is to implement the regulations, with its vast array of specifications, completely. An important shift from IHR 1969 here is that the State dealing with an epidemic is under an obligation to promptly notify and inform the WHO of such an outbreak in its territory (arts. 6&7). In other words, transparent and timely notification on all Member States to the WHO is currently a rule of international law binding on all WHO Member States. In addition to the above, in order to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic, the State hit by an unexpected or unusual public health event within its territory, which may constitute a public health emergency of international concern, is expected to impose border and transportation restrictions as illustrated in IHR 2005, both regarding persons, either nationals or aliens travelling to/from their territory, and cargo and trade goods stemming from such a State (arts. 16&17). On the other hand, when it comes to the obligations undertaken by WHO under IHR 2005, the Organization shall, upon receiving notification from a State struck by such a situation, cooperate vastly with the State(s) involved in providing, inter alia, technical guidance and assistance, so as to help contain and mitigate the outbreak (art. 13). Secondly, the Organization is obliged to cooperate systematically with all Member States and an abundance of international organizations, both inter-State and nongovernmental, in order to control the disease in a coordinated way (art. 14). Thirdly, as we are witnessing on a daily basis in the context of the Coronavirus situation at the moment, WHO is under an obligation to regularly receive information from States on the situation of the international spread of diseases, and to disseminate such information among the public (arts. 11&12).
What must be considered here is that IHR, or any regulation adopted by the World Health Assembly, create international legal obligations. Hence, we are not facing recommendatory, nonbinding standards, but rather binding obligations from an international law perspective. As a result, failure to comply with IHR 2005 by a State or group of States constitutes internationally wrongful acts. The IHR 2005 has prescribed multifaceted dispute settlement mechanisms in its body of provisions (art. 56). In case of a legal dispute in application or interpretation among States, the parties are to settle their dispute through amicable measures, i.e., diplomatic negotiations. If such course of action was to fail, States are required to resolve their dispute by recourse to arbitration, as demonstrated under the provisions therein. In case dispute arises between WHO and a State(s), the competent forum for dispute resolution would be the World Health Assembly.
It is worth mentioning that WHO, as with all international organizations, is virtually unable to implement the IHR 2005 without cooperation from States (art. 44). Also, the political concerns of States with regard to the role international organizations play in their territory or affairs, exists here. However, as mentioned above, States have the right to reject WHO regulations, or include reservations in their application (arts. 61&62). The United States and India are the only States which have made a reservation (pp. 60-61) to the IHR 2005. India’s reservation is limited to yellow fever, but the reservation issued by the U.S. covers a broad scope including that it ‘reserves the right to assume obligations under these Regulations in a manner consistent with its fundamental principles of federalism’. Iran is the only State which has objected to the US reservation, noting that ‘[…] by giving more prominence to federalism than its obligations under the IHR, the reserving Government attempts to evade its due responsibilities and obligations’.
The second legal domain we can discuss regarding the current situation of the COVID-19 pandemic is obviously international human rights law. Specifically, the right to health is of importance, as enshrined under Article 25 of the Universal Declaration of Human Rights (UDHR), Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and General Comment No. 14 of the Committee on Economic, Social, and Cultural Rights (CESCR). Based on this General Comment, as with all human rights, the CESCR affirms the tripartite angles of the right to health, namely the obligations to respect, protect, and fulfill (paras. 34-37). States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy; and abstaining from imposing discriminatory practices relating to women’s health status and needs. Furthermore, obligations to respect include a State’s obligation to refrain from prohibiting or impeding traditional preventive care, healing practices and medicines, from marketing unsafe drugs and from applying coercive medical treatments, unless on an exceptional basis for the treatment of mental illness or the prevention and control of communicable diseases. With respect to the obligation to protect, major concentration has been given to third party procurers which provide health facilities for individuals, and States are expected to protect the right to health by ensuring that health and safety measures are easily accessible for all in a nondiscriminatory manner. And finally, States are obliged to fulfill their obligations, either via legislation or monitoring, by prescribing the necessary mechanisms.
Human rights analyses often contain paradoxical considerations, and one rightly wonders how to address and resolve the apparent conflict among different rights, as we might face such concerns in the current circumstances. Bearing in mind the provisions of IHR 2005, especially those relating to quarantines at the time of large-scale epidemics, it could be argued that the provisions therein may come into conflict with, for instance, the right to freedom of movement enshrined in Article 12 of ICCPR. Logically, in such grave situations, some human rights could be limited, as permitted under ICCPR Article 12(3), under which public health is an exception to the right to freedom of movement. But, as UN human rights experts have stated, States are obliged to avoid overreach of security measures in their response to any emergency situation. The experts in their joint statement of 16 March 2020 asserted that: ‘[w]hile we recognize the severity of the current health crisis and acknowledge that the use of emergency powers is allowed by international law in response to significant threats, we urgently remind States that any emergency responses to the coronavirus must be proportionate, necessary and non-discriminatory’. (see also here)
The other relevant rights in the framework of international human rights law is the right to information, as a prerequisite to the right to freedom of expression, as illustrated in the UN General Assembly (UNGA) Resolution 59 (1946), Article 19 of the UDHR, and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). Being a prerequisite to the right to freedom of expression denotes that the permissible limitations on that rights are also applicable to the right to information, which are both numerically small and are only applicable in narrow circumstances. Of course, in the specific case of a pandemic, as we are concerned with the general health of individuals and populations, everyone should have access to transparent and complete information regarding the ongoing situation, as it is vital to their wellbeing. ‘Being open and transparent is key to empowering and encouraging people to participate in measures designed to protect their own health and that of the wider population, especially when trust in the authorities has been eroded. It also helps to counter false or misleading information that can do so much harm by fuelling fear and prejudice;, UN High Commissioner for Human Rights Michelle Bachelet said.
To conclude with human rights, it is vital to elaborate briefly on the right to humanitarian relief. It is evident that we are dealing with a large-scale international crisis, and so the issue of international solidarity comes into play (See: here). As submitted through the draft of the Human Rights Council’s Special Rapporteur to the UNGA, it is clearly noted therein that in order to tackle global challenges, of which the COVID-19 pandemic qualifies as one, States shall implement a human rights-based approach to international cooperation, in which humanitarian relief is prescribed. The International Law Commission (ILC) addressed the issue of humanitarian relief back in 2016. Emphasis should be concentrated on three main issues here. First, in its Draft Articles on the Protection of Persons in the Event of Disasters, the ILC provided a very broad definition of the term ‘disaster’, which includes epidemics. Article 3(a) of the Draft provides that: ‘disaster means a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’. Secondly, it is indeed a duty of the State to seek humanitarian relief from the international community if it is unable to manage the crisis by itself (draft article 11). Further, it is worth mentioning that, in accordance with draft article 15, ‘the affected State shall take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance’. Of course, the provision of humanitarian external assistance ‘requires the consent of the affected state’ (draft article 13(1)) but as clearly stated in draft article 13(2): ‘[c]onsent to external assistance shall not be withheld arbitrarily’. And finally, ‘[w]hen external assistance is sought by an affected State by means of a request addressed to another State, the United Nations, or other potential assisting actor, the addressee shall expeditiously give due consideration to the request and inform the affected State of its reply’ (draft article 12(2)).
The third international law area we would like to explore concerning the outbreak of epidemics and pandemics is the possible threat such events create for international peace and security (See: here and here). We have already witnessed that the UN Security Council (UNSC), which was traditionally viewed as concerned mostly with armed conflicts or the threat or use of force, has determined HIV/AIDS or Ebola as threats to international peace and security and has adopted resolutions in response. It is not unimaginable that the UNSC would have COVID-19 and its spread on its agenda in the near future; especially if this disease was to spread at the current pace among the populations of States engaged in armed conflicts which would unfortunately multiply and enlarge the scale of ongoing crises. In total, there are four UNSC resolutions concerned with communicable diseases; two resolutions on HIV/AIDS, and two resolutions on Ebola. In its Resolution 1308 (2000), the UNSC noted that ‘the HIV/AIDS pandemic, if unchecked, may pose a risk to stability and security’. Also, the UNSC, by adopting Resolution 1983 (2011), stressed that ‘HIV poses one of the most formidable challenges to the development, progress and stability of societies and requires an exceptional and comprehensive global response’. Responding to the Ebola epidemic, which spread mainly in Africa, the UNSC adopted Resolution 2177 (2014) in which it specifically noted that the ‘unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security’, and called upon States to cooperate in tackling it. In another outcome, the UNSC, adopting Resolution 2439 (2018), emphasized three main issues relating to Ebola: first, considering that Ebola had spread in the Democratic Republic of the Congo (DRC), the primary responsibility of managing the disaster was put on the DRC; secondly, the affected State shall promptly notify and inform the international community regarding the situation; and finally, the international community must provide financial and technical assistance to the affected State.
On a final note, we would stress that, as we have already learned from the brief experience in relation to COVID-19, and previous pandemics, it is not farfetched to predict that humanity would face similar crises in the future. The decent course of action in such times is definitely global transparency in providing information and, of course, meaningful and significant international cooperation, the basis of which, as discussed above, already exists under international law.