13 Aug 2021
The COVID-19 pandemic is wreaking human, economic, and social damage around the world. Several States have taken measures in an attempt to contain and mitigate the spread of the disease, and many have declared states of emergency in accordance with their own domestic laws.
The measures mostly involve social distancing, including quarantines, isolation and travel restrictions. These measures, alongside the virus itself, have had significant personal and human costs already. But they are also having a wider impact on the global economy and on supply chains and other commercial relations.
It is not unlikely to think that the outbreak, and the measures put in place by States to address it, may also affect relations regulated by public international law.
For instance, under the responsibilities of Foreign Investment Law, the quarantine measures could severely delay foreign investment projects, possibly at considerable cost to those investors, and involves the obligation to afford fair and equitable treatment to foreign investors. Likewise, travel bans may affect obligations under bilateral civil aviation agreements, as well as the provisions on non-discrimination on the basis of nationality contained in the Chicago Convention on International Civil Aviation.
Clearly, the isolation measures, quarantines, and cancellation of mass events are invading the individual liberties, including the rights to freedom of movement and freedom of assembly under human rights law.
The international law on infectious diseases evolves from early 1800. The origin of modern infectious disease law is often traced to the cholera pandemic in Europe from 1829 to 1851. From 1816 to 1826, a cholera pandemic spread through India, Southeast Asia, and China. Three years after the pandemic subsided in China, it reached parts of Europe. In 1831 and 1832, cholera was epidemic in several of Europe’s major cities. In 1849, cholera again spread through several European, and then U.S., cities.
In 1851, the First International Sanitary Conference convened in Paris, France. Cholera identification and prevention was a primary concern of the attendees. Pandemic cholera spurred diplomacy between nations. England and France both sent public health officials to medical academies and hospitals abroad to study the disease and possible treatments. Infectious disease and sanitation laws that proved effective in one location were often adopted elsewhere. From 1851 to 1900, ten international sanitary conferences met to discuss the international impacts of infectious disease. Eight international conventions were drafted, though few were adopted into force by national governments.
As any contagious disease appears threatening, the treatment options and prevention mechanism changes accordingly. This changes also changes the response of International law governing the disease.
On July 25, 1951, WHO member states adopted the International Sanitary Regulations, later renamed the International Health Regulations (IHR), to“ensure the maximum protection against the international spread of disease with minimum interference with world traffic.”
IHR guidelines require that nations notify other countries about disease outbreaks within their borders, maintain accurate records about such outbreaks, establish public health protocols at national points of entry and exit (such as border crossings or airports), and that substantial restrictions on trade for disease-prevention be based on scientific evidence of a public health concern. Nations may require vaccine certificates or health screenings of travelers and immigrants, and adopt hygiene, disinfection, isolation, or quarantine protocols at points of entry as needed.
Previously, the global health security regime was governed by the IHR of 1969, which recognised only three diseases: cholera, plague and yellow fever. The annual World Health Assembly approved revised IHR in May 2005 and currently addressing cholera, yellow fever, plague, smallpox, polio, severe acute respiratory syndrome (SARS), and human influenza.
The revised regulations are binding on 196 nations. Many aspects of the IHR remain difficult to enforce. According to a study conducted by the British Medical Journal, 119 countries including some of the most developed ones were unable to meet the key requirements prescribed by the regulations. Member nations have adopted several provisions of the IHR, while abandoning others. National laws governing reporting of diseases are sometimes not as stringent, or nations have failed to report epidemics. The advent of Covid-19 and its subsequent spread to 213 countries / states illustrates the lack of implementation and adherence to these regulations.
State responsibility and compensation as to violation of International Law
In International law, most treaties do not address whether the violation of their rules creates an obligation to compensate those states parties adversely affected by harms caused by the violation.
Customary international law on state responsibility holds that a state violating international law has “an obligation to make full reparation for the injury caused by the internationally wrong act.” This customary rule has played no visible role in disease outbreaks over the long history of international health cooperation, even when states have argued that countries violated applicable treaties. States have not seriously pursued compensation against countries accused of breaching treaty obligations to report disease events or for not applying in time the travel restriction to stop the spread of infectious disease.
The current Covid-19 crisis has once again highlighted the need to apply the International Health Regulations (IHR) and the principles of state responsibility for enhanced international cooperation and to strengthen the global health security.