Locating Human Rights in the Heart of the New 'International Pandemic Law': A Reply to Steve Charnovitz
Dr I-Ju Chen
The COVID pandemic has caused significant and evolving challenges to every nation in the world since it occurred in December 2019. It has resulted in, for example, export prohibitions and restrictions in international trade, cross-border sharing of scientific data for global health efforts, and has affected human rights. These unprecedented disruptions have required countries to navigate solutions for the pandemic, and further revealed gaps and challenges in international law. In the Opinio Juris Symposium entitled ‘COVID-19 and International Law’ held in March 2020, Professor Philippe Sands, a leading international law scholar, pointed out that ‘the birth and transmission of the Sars-Cov-2 virus, and the COVID-19 illness it generates, and the response to it – are matters for international law’. Moreover, the 2005 International Health Regulations have been criticised for their ambiguity in the COVID pandemic, according to Armin von Bogdandy and Pedro A Villarreal’s research. The function of this governing regulation has generated many discussions on how to reform international health law. The COVID pandemic is thus a matter for international law, and rule-of-law responses for the pandemic under international law are necessary.
An ‘international pandemic law’ proposal
Some international lawyers and scholars have responded to the gaps in governance during the pandemic. In a post published on the International Economic Law and Policy Blog on 10th May 2020, Steve Charnovitz, a professor of public international law at the George Washington University Law School, proposed a new concept: ‘International Pandemic Law’. This proposal is built on his previous successful attempt of defining international economic law.
Professor Charvonitz addresses four points for defining this new law. Firstly, international pandemic law should be a mix of hard and soft law as well as public and private law. The hard law would consist of minimum standards that all governments agree to incorporate into their domestic law and enforcement. The soft law would take the form of principles to which governments give consent. Secondly, better international institutional frameworks are necessary, based on the condition of having the World Health Organisation as chief governing institution in international pandemic law. Thirdly, there should be a development and financial dimension to establishing international pandemic law, because of the risk of a short or long-term financial crisis. Moreover, this financial dimension requires involvement by the International Monetary Fund, the World Bank and the Regional Banks. Lastly, measures taken against COVID cannot be left to governments. This post is a reply to Professor Steve Charvonitz’s proposal.
A reply to the proposed international pandemic law
The author agrees with Charnovitz’s overall definition, except for including a financial dimension in the new international pandemic law. This is because global economy recovery and financial surveillance are special regimes which are not much related to pandemic governance. In addition, during a transitional period before the official implementation of international pandemic law begins, a mechanism for co-operation of international law can work as a rule of law for international law’s collective response to the COVID pandemic. This is because issues or disputes regarding the international pandemic will be subject to every applicable rule of international law, according to the general rule of interpretation stipulated in Article 31(3) of the Vienna Convention of Law of Treaties – ‘[…] any relevant rules of international law applicable in the relations between the parties’.
Finally, in 2015, the United Nations Member States – both developed and developing countries – announced to adopt the 17 sustainable development goals (SDGs) to improve health and education, reduce inequality, and stimulate economic growth, all of which will eventually enshrine the global value of human rights. In light of the significance of the 17 SDGs which have to be implemented before 2030, this post argues for a human-rights based approach to be embedded as a foundation when considering a reform of the current global health governance. The author’s action plan to implement this human-rights informed international pandemic law is composed of 3 steps. First of all, it is critical to strengthen animals’ rights together with human rights protection. The rationale underlying this claim for animal protection is due to the origin of the coronavirus, which was found in wild animals. Therefore, if society considers and seriously protects animal rights, by, for example, performing environmental impact assessment before utilising wild animals’ natural habitats, this measure might result in a healthier environment for animals and human beings. Ultimately, a severe disease or even a pandemic could fall under human control. Secondly, under new international pandemic law, states should ratify a series of policy measures to ensure fundamental adherence to human rights standards. For example, in cases of international uncertainty, requiring national emergency declarations, states should abide by the rule of law and be monitored by a separate and independent power of government. This is to avoid amplifying disruptions to social and economic rights amidst the pandemic. The final suggested step is focused on integrating a human rights-based approach to substantive and procedural perspectives of international pandemic law.
Since the birth of COVID-19, international legal regimes pertaining to health have been heavily criticised. After a one-year intensive discussion on COVID-19 and international law, the world still seems to struggle to come up with a more efficient and responsive global health governance for the pandemic. The new field of international pandemic law is a welcome idea in these times. However, given COVID-19’s significant impacts on human rights, this post highlights the significance of locating human rights in the heart of international pandemic law before it crystallises into a new law.
Dr. I-Ju Chen completed a PhD in international law at University of Birmingham and an LLM at University College London. She holds a certificate of public international law from The Hague Academy of International Law. She is a Visiting Scholar at the School of Law at Durham University and an Assistant Lecturer at the School of Law at Birmingham City University. She extensively publishes on international law and EU law.